Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party. (b) If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). (c) If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 6 contracts
Samples: Stock Purchase Agreement (Aerovox Inc), Stock Purchase Agreement (Aerovox Inc), Stock Purchase Agreement (Aerovox Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed)) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Can B Corp), Equipment Acquisition Agreement (Can B Corp), Equipment Acquisition Agreement (Can B Corp)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 3 contracts
Samples: Asset Acquisition Agreement (Cell-Nique Corp), Stock and Asset Acquisition Agreement (Navisite Inc), Stock and Asset Acquisition Agreement (Navisite Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyproceeding, the Indemnifying Party, at his or its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation proceeding, whether or not under a reservation of the Indemnifying Party to indemnify the Indemnified Party rights with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) ultimate liability under this Article VI. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayeddelayed if the settlement or judgment includes an unconditional release to the Indemnified Party from all liability with respect to such claim). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 twenty one (21) days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: Indemnification Claim Notice, (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Boxscore Brands, Inc.), Asset Purchase Agreement (Pure Earth, Inc.)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed)) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 2 contracts
Samples: Asset Acquisition Agreement (Cardium Therapeutics, Inc.), Asset Acquisition Agreement (Cell-Nique Corp)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyproceeding, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks such claim is solely for monetary damages only and (iii) an adverse resolution of or relates to the third party's claim would not have a material adverse effect on IP Litigation, and, if requested, the goodwill or reputation of Indemnifying Party gives the Indemnified Party.
(b) Party reasonable assurances of its ability to pay any adverse judgment resulting from such claim. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld, conditioned or delayeddelayed it being understood that it shall not be unreasonable for the Indemnified Party to withhold its consent from any settlement that (1) commits the Indemnified Party to take, or to forbear to take, any action, or (2) does not provide for a complete release of the Indemnified Party by such third party). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days fifteen (15) Business Days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: Indemnification Claim Notice:
(i) the The Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriateappropriate and all costs of litigation incurred by the Indemnified Party shall be included in the calculation of the Indemnified Party’s Loss; and and
(ii) the The Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
(b) Notwithstanding the foregoing, in the event the IP Litigation is not finally concluded upon the expiration of the IP Indemnification Period, then the IP Litigation shall be controlled by the Company and/or Buyer at the time at which the Company’s aggregate sales of products alleged to infringe the JP/S Patents exceed sales of such allegedly infringing products by the Company during the IP Indemnification Period. Each of the Buyer and the Company, on the one hand, and the Stockholders and Grandi, on the other hand, must consent in writing to any settlement or compromise of the IP Litigation (such consent not to be unreasonably withheld). Upon the entry of any final, non-appealable judgment or order related to the IP Litigation resulting in Losses, then the parties agree that each shall be responsible for its attorney’s fees and costs incurred as set forth in this Section 12.4, and that Losses shall be apportioned, on a per-unit basis based on the number of product units sold, (i) to Stockholder and Grandi, for sales during the IP Indemnification Period, and (ii) to Company/Buyer for sales after the expiration of the IP Indemnification Period.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Norcross Safety Products LLC), Stock Purchase Agreement (Safety Products Holdings, Inc.)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out Within seven days after receipt of any claim or legal proceeding by a third partythe Notice, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Claim. If the Indemnifying Party so timely assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding Third Party Claim and, at the sole cost and expense of the Indemnifying Party, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Third Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) If the Indemnifying Party does not (or is not permitted under the terms hereof to) fails to assume and continually maintain the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 the Third Party Claim within 15 seven days after the date that the Indemnified Party has given notice Indemnifying Party’s receipt of the claim to the Indemnifying Party: (i) Notice, the Indemnified Party may defend against assume sole control of defense or settlement of such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as at the Indemnified Party may deem appropriate; sole cost and (ii) expense of the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expenseParty.
Appears in 2 contracts
Samples: Asset Purchase Agreement (New Age Beverages Corp), Asset Purchase Agreement (New Age Beverages Corp)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out Within fifteen days after receipt of any claim or legal proceeding by a third partythe Notice, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Claim. If the Indemnifying Party so timely assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding Third Party Claim and, at the sole cost and expense of the Indemnifying Party, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Third Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed). The If the Indemnifying Party fails to give the Indemnified Party shall be entitled to participate in (but not control) written notice within fifteen days after the defense Indemnifying Party’s receipt of any such action, with its own counsel and at its own expense (except the Notice that the Indemnifying Party will be responsible for is assuming the fees defense of such Third Party Claim or if the Indemnifying Party fails to assume and expenses continually maintain the defense of the separate co-counsel to Third Party Claim within fifteen days after the extent Indemnifying Party’s receipt of the Notice, the Indemnified Party reasonably concludes that may assume sole control of defense or settlement of such claim at the counsel sole cost and expense of the Indemnifying Party has selected has a conflict of interest).
(c) Party. If the Indemnifying Party does not (thereafter seeks to question the manner in which the Indemnified Party defended such Third Party Claim or is not permitted under the terms hereof to) assume the defense amount or nature of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after settlement, the date Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party has given notice did not defend or settle such Third Party Claim in a reasonably prudent manner. Notwithstanding any provision of this Article to the contrary, the Indemnified Party shall have the sole and exclusive right to assume and continually defend and/or settle any indemnification claim to under this Article 11 (at the Indemnifying Party: ’s cost and expense) if (i) the Indemnified Party concludes in good faith that there may defend against be legal defenses available to it that are different from or in addition to those available to the Indemnifying Party, or that another conflict of interest exists or may occur in defense of such claim claim, (ii) the third-party in question is one of the Indemnified Party’s former, current or litigation in such manner as he anticipated future customers, or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as (iii) the Indemnified Party may deem appropriatedetermines, in good faith, that there are other, legitimate business reasons why it would not be in the best interests of the Indemnified Party, Purchaser and/or the Business for the Indemnifying Party to assume the defense of such claim; and (ii) provided, however, that the Indemnifying Party shall be entitled to participate in (but not control) the defense of such actionclaim, with his or its own counsel and at his or its own expense.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tandem Health Care, Inc.), Asset Purchase Agreement (Tandem Health Care, Inc.)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third partyThird Party Claim, the Indemnifying Party, at his or its sole cost and expense, Party may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding Third Party Claim if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Third Party Claim. If the Indemnifying Party so assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding andThird Party Claim, and at the sole cost and expense of the Indemnifying Party, shall take all steps it deems necessary or appropriate in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Third Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless such settlement or judgment includes a full release of the Indemnified Party from such Third Party Claim. No settlement or compromise which seeks non-monetary damages which could have an adverse effect on the business or assets of the Indemnified Party shall be entered into without the consent of the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actionThird Party Claim, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 Third Party Claim within 15 thirty (30) days after the date that it receives written notice of such Third Party Claim from the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party may defend against such claim or litigation Third Party Claim in such manner as he or it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation Third Party Claim so long as such settlement includes a full release of the Indemnifying Party from such Third Party Claim, on such terms as the Indemnified Party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third Party Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such Third Party Claim in a reasonably prudent manner.
(b) The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such Third Party Claim or for testimony as witnesses in any proceeding relating to a Third Party Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Echo Global Logistics, Inc.), Asset Purchase Agreement (Echo Global Logistics, Inc.)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own the expense (except that of the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) Party. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 2 contracts
Samples: Purchase Agreement (Harbor Global Co LTD), Purchase Agreement (Pioneer Group Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(dExcept as provided in Section 7.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, Party at his or its sole cost and expense, expense may, upon written notice to the Indemnified PartyParty given within 20 days after the date of the notice of the claim from the Indemnified Party pursuant to Section 7.3, assume the defense of any such claim or legal proceeding with counsel approved by the Indemnified Party, which approval shall not be unreasonably withheld, if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party Party's obligations to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only only, and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or the reputation of the Indemnified Party or, if the Buyer is the Indemnified Party, the business or operations of the Buyer.
(b) If the Indemnifying Party so assumes the defense of any such claim or legal proceedingdefense, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (in, but not control) the defense of any , such actiondefense, with its own counsel and at its own expense (expense, except that the Indemnifying Party will shall be responsible for the reasonable fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). In addition, if the Indemnifying Party so assumes such defense, it shall take all steps necessary in the defense or settlement thereof; provided, however, that the Indemnifying Party shall not consent to any settlement or to the entry of any judgment with respect to a claim or legal proceeding which does not include a complete release of the Indemnified Party from all liability with respect thereto or which imposes any liability on the Indemnified Party without the written consent of the Indemnified Party.
(c) If Except as provided in Section 7.4(d), if the Indemnifying Party does not (not, or is not permitted under the terms hereof to) , assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: legal proceeding, (i) the Indemnified Party may defend against such claim or litigation legal proceedings, with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party, in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation legal proceeding on such terms as the Indemnified Party may deem appropriate; , and (ii) the Indemnifying Party shall be entitled to participate in (in, but not control) , the defense of such action, with his or its counsel and at his or its own expense.
(d) If a third party asserts that an Indemnified Party is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Party may be entitled to indemnification pursuant to this Article VII, and such Indemnified Party reasonably determines that it has a valid business reason to fulfill such obligation, then (i) such Indemnified Party shall be entitled to satisfy such obligation, without prior notice to or consent from the Indemnifying Party, (ii) such Indemnified Party may make a claim for indemnification pursuant to this Article VII in accordance with the provisions hereof, and (iii) such Indemnified Party shall be reimbursed, in accordance with the provisions hereof, for any such Damages for which it is entitled to indemnification pursuant to this Article VII (subject to the right of the Indemnifying Party to dispute the Indemnified Party's entitlement to indemnification under the terms of this Article VII).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Dynatech Corp), Asset Purchase Agreement (Telxon Corp)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyproceeding, the Indemnifying Party, at his or its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation proceeding, whether or not under a reservation of the Indemnifying Party to indemnify the Indemnified Party rights with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) ultimate liability under this Article V. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayeddelayed if the settlement or judgment includes an unconditional release to the Indemnified Party from all liability with respect to such claim). If the Indemnified Party shall withhold its consent to an economic settlement tendered to it by the Indemnifying Party (the expense of which would be borne solely by the Indemnifying Party), then the amount of any indemnification liability of the Indemnifying Party specific to the claim which was the subject of the proffered and rejected settlement shall not exceed the amount of such proffered and rejected settlement, plus costs and expenses applicable to consummating such settlement. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 twenty one (21) days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: Indemnification Claim Notice, (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Checkpoint Systems Inc), Asset Purchase Agreement (Checkpoint Systems Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third person other than the indemnified party, the Indemnifying Party, indemnifying party at his or its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying party's receipt of notice of such claim, assume the defense of any such claim or legal proceeding if (i) provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation entire amount of the Indemnified Party.
(b) claims asserted therein. If the Indemnifying Party so indemnifying party assumes the defense of any such claim or legal proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the its sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)withheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement and concurrently with such settlement the indemnifying party pays into court the full amount of all losses, damages, expenses and liabilities to be paid by the indemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation in such manner as he or it may deem appropriateappropriate (and the indemnifying party may participate at its own expense), including, but not limited to, settling such claim or litigation on litigation, after giving notice of the same to the indemnifying party but such terms as settlement shall not be made without the Indemnified Party may deem appropriate; and prior written consent of the indemnifying party (iiwhich consent will not be unreasonably withheld) unless the Indemnifying Party shall be entitled to participate in (but indemnified party agrees that the indemnifying party is not control) the defense of liable for such action, with his or its counsel and at his or its own expenseclaim under this Agreement.
Appears in 2 contracts
Samples: Purchase Agreement (U S Aggregates Inc), Asset Purchase Agreement (U S Aggregates Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) If the Indemnifying Party acknowledges to notifies the Indemnified Party in writing within the obligation of Dispute Period that the Indemnifying Party desires to indemnify defend the Indemnified Party with respect to all elements of such claim, (iia Third-Party Claim pursuant to this Section 11.5(b) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) If the Indemnifying Party so assumes will have the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable right to the Indemnified Party to conduct the defense of such claim or legal proceeding anddefend, at the sole cost and expense of the Indemnifying Party, shall take such Third-Party Claim by all steps necessary in appropriate proceedings, which proceedings will be vigorously and diligently prosecuted or defended by the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, final conclusion or will be settled at the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor discretion of the Indemnified Party, without Indemnifying Party (but only with the prior written consent of the Indemnified Party (in its sole discretion in the case of any settlement that provides for any relief other than the payment of monetary damages as to which consent shall not the Indemnified Party will be unreasonably withheld indemnified in full pursuant to this Article XI). Subject to the immediately preceding sentence, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or delayedsettlement thereof; provided that the Indemnified Party may, at the cost and expense of the Indemnifying Party, at any time prior to the delivery by the Indemnifying Party of the notice referred to in the first sentence of this Section 11.5(b), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary, appropriate or desirable to protect its interests. If requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third-Party Claim that the Indemnifying Party elects to contest. The Indemnified Party shall be entitled to may participate in (in, but not control, any defense or settlement of any Third-Party Claim controlled by the Indemnifying Party pursuant to this Section 11.5(b) and, except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding anything to the contrary set forth in this Section 11.5(b), an Indemnifying Party’s right to assume the defense of any such action, Third-Party Claim with counsel of its own counsel and at its own expense choice reasonably satisfactory to the Indemnified Party shall exist so long as: (except A) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will be responsible for have adequate financial resources to defend against the fees Third-Party Claim and expenses of fulfill the separate coIndemnifying Parties’ indemnification obligations hereunder; (B) the Third-counsel to the extent Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
Party; (cC) If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) not been advised by counsel that an actual or potential conflict exists between the Indemnified Party may defend against such claim or litigation and the Indemnifying Parties in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as connection with the Indemnified defense of the Third-Party may deem appropriateClaim; and (iiD) the Indemnifying Third-Party shall be entitled Claim does not relate to participate or otherwise arise in (but not control) the defense of such action, connection with his any criminal or its counsel and at his or its own expenseregulatory enforcement Proceeding.
Appears in 2 contracts
Samples: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) claim if the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) facts alleged in such Third Party Claim are subsequently determined to be accurate. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable satisfactory to the Indemnified Party to conduct the defense of such claim claims or legal proceeding proceedings and, at the sole cost and expense of the Indemnifying Party, shall take all steps it deems necessary or appropriate in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless such settlement or judgement includes a full release of the Indemnified Party from such Third Party Claim. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 ten (10) days after the date that it receives written notice of such claim from the Indemnified Party has given notice of the claim to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.claim
Appears in 1 contract
Samples: Merger Agreement (Brooktrout Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a third person other than the indemnified party, the Indemnifying Party, indemnifying party at his or its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Legal Proceeding. If the Indemnifying Party so indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claim or legal proceeding and, Legal Proceedings and at the its sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified PartyLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation Legal Proceeding resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation Legal Proceeding, after giving notice of the same to the indemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate; and (ii) . In any action by the Indemnifying Party indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 8, the indemnifying party shall not be entitled to participate question the manner in (but which the indemnified party defended such Legal Proceeding; provided that such limitations shall not control) apply to claims of fraud, bad faith, gross negligence or willful misconduct by the defense of such action, with his or its counsel and at his or its own expenseindemnified party.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the his or its obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceedings, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settlement such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall thereafter be entitled to participate in and assume control of the defense of any such action if the Indemnified Party has a reasonable basis for concluding that its interests would be better served. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party or the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Asset Purchase Agreement (Airport Systems International Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), provided, that, if the Indemnified Party withholds consent to any settlement of a claim for monetary damages only, the Indemnifying Party's liability to indemnify the Indemnified Party for such claims under this Section shall not exceed the amount set forth in the proposed settlement. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given written notice of the such claim is provided to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation (without relieving the Indemnifying Party of its indemnification obligations), after giving written notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Avid Technology Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed)) unless the settlement is only for cash and includes a full release of the Indemnifying Party. Without limitation, it shall not be deemed unreasonable to withhold consent to a settlement if equitable relief against the Indemnified Party is contemplated, awarded or stipulated, the Indemnified Party is required to make an admission of civil liability or to the commission of a crime, or money is required to be paid by the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner. 12 of 18Initials: _____, _____, _____, ____
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of such Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 thirty (30) days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (i) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any --------------------------------- claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyThird Party Claim, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) proceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding andproceedings (provided that such counsel shall acknowledge in -------- writing to the Indemnifying Party and the Indemnified Party that in conducting such defense it is representing both the Indemnifying Party and the Indemnified Party; and that if such counsel subsequently determines that there is a conflict of interest in continuing to represent both the Indemnifying Party and the Indemnified Party, such counsel shall notify such parties, in which event the Indemnified Party shall be entitled to participate in such defense with its own counsel). The reasonable fees of the counsel selected by the Indemnified Party in accordance with the preceding sentence shall be at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in Party if it is finally determined that the defense or settlement thereofIndemnifying Party is responsible for such claim. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless such settlement or judgement includes a full release of the Indemnified Party from such Third Party Claim. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 twenty (20) days after the date that it receives written notice of such claim from the Indemnified Party has given notice of the claim to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation (subject to the last sentence of Section 2.3), on such terms as the Indemnified Party may reasonably deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such Third Party Claim in a reasonably prudent manner.
(b) The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such Third Party Claim or for testimony as witnesses in any proceeding relating to a Third Party Claim.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third party, person other than the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes assume the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall thereafter be entitled to participate in and assume control of the defense of any such action if the Indemnified Party has a reasonable basis for concluding that its interests would be better served. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does do not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party or the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Stock Purchase Agreement (Airport Systems International Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third party, person other than the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall thereafter be entitled to participate in and assume control of the defense of any such action only if the Indemnified Party has a reasonable basis for concluding that its interests are in conflict with those of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party or the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) provided that, if the third party seeks monetary damages only and (iii) an adverse resolution Indemnified Party is the Buyer, such defense will not, in the reasonable opinion of the third party's claim would not have a material adverse effect on Buyer, adversely affect the goodwill business, assets or reputation undertakings of the Indemnified Party.
(b) any of PPL, PML, ECP, Pioneer Poland U.S., Pioneer Poland UK and Pioneer Poland GP. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a third person other than the indemnified party, the Indemnifying Party, indemnifying party at his or its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if (i) Legal Proceeding provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation entire amount of the Indemnified Party.
(b) claims asserted therein. If the Indemnifying Party so indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claim or legal proceeding and, Legal Proceedings and at the its sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified PartyLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)withheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement and concurrently with such settlement the indemnifying party pays into court the full amount of all losses, damages, expenses and liabilities to be paid by the indemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation Legal Proceeding resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation Legal Proceeding, after giving notice of the same to the indemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate; and (ii) . In any action by the Indemnifying Party indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 11, the indemnifying party shall not be entitled to participate question the manner in (but which the indemnified party defended such Legal Proceeding or the amount of or nature of any such settlement; provided that such limitations shall not control) apply to claims of fraud, bad faith, gross negligence or willful misconduct by the defense of such action, with his or its counsel and at his or its own expenseindemnified party.
Appears in 1 contract
Samples: Merger Agreement (KIT Digital, Inc.)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any third party claim or legal proceeding by a third partyproceeding, the Indemnifying Party, at his or its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in the Indemnified Party’s sole determination to conduct the defense of such claim claims or legal proceeding and, and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 thirty (30) days after the date that the Indemnified Party has given notice of the claim to Indemnification Claim Notice, then until the Indemnifying PartyParty assumes the defense of such claim: (i) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and all costs of litigation incurred by the Indemnified Party shall be included in the calculation of the Indemnified Party’s Loss; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Marketing and Administration Agreement (Allstate Life Insurance Co)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges by providing prompt notice to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of and shall conduct such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, Party and shall take all steps necessary in the defense or settlement thereof. The ; provided, however, (i) the Indemnifying Party shall not consent to a settlement of, or acknowledge in writing that the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting is one which the Indemnified Party or is entitled to be indemnified by the Indemnifying Party hereunder, and (ii) does not involve such defense shall be conducted reasonably, in good faith by adequate proceedings. Where the delivery of a general release in favor Indemnifying Party is entitled to undertake the defense of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Partysuch claim: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. The Indemnifying Party may not thereafter seek to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, unless the Indemnifying Party shall prove by a preponderance of the evidence that the Indemnified Party was grossly negligent in the defense or settlement of such third party claim. Provided the other party is not then (i) insolvent, (ii) not paying its debts as they become due, or (iii) in default under any provision hereof, the party defending any claim or legal proceeding shall not, without the written consent of the other party (not to be unreasonably withheld or delayed), permit a default judgment or consent to entry of any judgment, or settle or compromise any third party claim unless the claimant or claimants provide an unqualified release as to the Indemnified and the Indemnifying Party from all liability in respect to the third party claim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sunlink Health Systems Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with 46 PAGE respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, at the sole cost proceedings and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall bear its costs and expenses incurred in connection with its defense of any claim under this Section 6.4, provided that, if the Buyer of the Company is the Indemnified Party, the Indemnifying Party, if it assumes the control of such claim, may be reimbursed for its reasonable out-of-pocket costs in connection with such defense from the amounts then held pursuant to the Escrow Agreement pursuant to the procedures set forth therein. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed)) unless the terms thereof provide for the unconditional release and discharge of the Indemnified Party; provided that if the Indemnified Party is the Buyer or the Company, the Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding without the consent of the Buyer where the Buyer or the Company shall have reasonably demonstrated that the circumstances surrounding such settlement or judgment could result in an adverse impact upon the business, operations, assets or financial position of the Buyer, the Company or any Subsidiary. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) . If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause Section 6.4 within 15 thirty (30) days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyPerson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, shall be entitled to participate in the defense of such claim or legal proceeding and may, upon written notice to the Indemnified Party within thirty (30) days following the Indemnifying Party's receipt of the Indemnified Party's notice of such claim pursuant to Subsection 12.04, assume and control the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) proceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereofproceedings. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed)) unless (a) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party and (b) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 thirty (30) days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ix) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; appropriate in its reasonable discretion in light of its evaluation of the probability of an adverse judgment in connection with such claim or litigation, the estimated damages that would be awarded by a court rendering such potential adverse judgment and its estimate of the out- of-pocket costs of defending such claim or litigation, and (iiy) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner consistent with clause (x) of this Subsection 12.05.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding andshall, at the its sole cost and expense of the Indemnifying Partyexpense, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting proceeding, other than the Indemnified Party or (ii) does not involve the delivery payment of money, unless such settlement includes a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld from any and all claims arising from or delayed)related to such claim or legal proceeding. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 thirty (30) days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner. In the event that the Company's stockholders constitute the Indemnifying Party, all references herein to the Indemnifying Party shall be deemed to mean the Stockholders' Representatives, who shall have the power and authority to bind the Company and all of the Company's stockholders. All costs and expenses to be borne by the Indemnifying Party, if the Indemnifying Party is the Company, shall be borne severally by each of the Company's stockholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 1 contract
Samples: Agreement and Plan of Corporate Reorganization (Prodigy Communications Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Parties, the Indemnifying Party, Party at his or its sole cost and expense, may, upon written notice to the Indemnified Parties received by the Indemnified Parties within 10 calendar days of the Indemnifying Party' receipt of such claim, assume the defense of any such claim or legal proceeding if (i) provided that the Indemnifying Party acknowledges to the Indemnified Party in writing the their obligation of the Indemnifying Party to indemnify the Indemnified Party with Parties in respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation entire amount of all of the Indemnified Party.
(b) claims asserted therein. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party Parties to conduct the defense of such claim claims or legal proceeding and, proceedings at the their sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereofexpense. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Parties, provided that the Indemnifying Party (which may, without the Indemnified Party's prior written consent, settle or compromise any such action, claim or proceeding or consent shall not be unreasonably withheld to entry of any judgment with respect to any such action or delayed)claim that requires solely the payment of money damages by the Indemnifying Party and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party from all liability with respect to such action, claim or proceeding. The Indemnified Party Parties shall be entitled to participate in (but not control) the defense of any such action, with its their own counsel and at its their own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information or documentation relating thereto. If the Indemnifying Party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party Parties may defend against such claim or litigation in such manner as he or it they may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party Parties may deem appropriate; and (ii) the . The Indemnifying Party shall be entitled to participate in (but not control) the defense of such actionany action by the Indemnified Parties, with his or which participation shall be limited to contributing information to the defense and being advised of its counsel and at his or its own expensestatus.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall thereafter be entitled to participate in and assume control of the defense of any such action if the Indemnified Party has a reasonable basis for concluding that its interests would be better served. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) proceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given on which notice of the such claim to the Indemnifying Partyis received: (ia) the Indemnified Party may may, at the Indemnifying Party's sole expense (payable as incurred and on demand) defend against such claim or litigation as set forth in such manner as he or it may deem appropriateSection 10.3, includingafter giving notice of the same to the Indemnifying Party, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d)Section 9.4(d) below, in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, Party at his or its sole cost and expense, expense may, upon written notice to the Indemnified PartyParty given within 20 days after the date of the notice of the claim from the Indemnified Party pursuant to Section 9.3, assume the defense of any such claim or legal proceeding with counsel approved by the Indemnified Party (which approval shall not be unreasonably withheld), if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party Party's obligations to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Partyonly.
(b) If the Indemnifying Party so assumes the defense of any such claim or legal proceedingdefense, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actiondefense, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the reasonable fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). In addition, if the Indemnifying Party so assumes such defense, it shall take all steps necessary in the defense or settlement thereof; provided, however, that the Indemnifying -------- ------- Party shall not consent to any settlement or to the entry of any judgment with respect to a claim or legal proceeding which does not include a complete release of the Indemnified Party from all liability with respect thereto or which imposes any liability or obligation on the Indemnified Party without the written consent of the Indemnified Party.
(c) If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: legal proceeding, (i) the Indemnified Party may defend against such claim or litigation legal proceeding (with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party) in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation legal proceeding on such terms as the Indemnified Party may deem appropriate; , and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
(d) If a customer or supplier of the Company asserts that the Company or its Subsidiaries or the Buyer is liable to such party for a monetary or other obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification pursuant to this Article IX and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (subject to notifying the Seller in reasonable detail as to the matter asserted by the customer or supplier)
(i) the Buyer shall be entitled to satisfy such obligation, without consent from the Seller, (ii) the Buyer may make a claim for indemnification pursuant to this Article IX in accordance with the provisions hereof and (iii) the Buyer shall be reimbursed, in accordance with the provisions hereof, for any such Damages for which it is entitled to indemnification pursuant to this Article IX.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a third person other than the indemnified party, the Indemnifying Party, indemnifying party shall have the right to participate in or at his or its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Legal Proceeding. If the Indemnifying Party so indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claim or legal proceeding and, Legal Proceedings and at the its sole cost and expense of the Indemnifying Party, shall take all steps reasonably necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified PartyLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)withheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation Legal Proceeding resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation Legal Proceeding, after giving reasonable advance notice of the same to the indemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 1 contract
Samples: Merger Agreement (KIT Digital, Inc.)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (i) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, 36 without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Stock Purchase Agreement (Uici)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing of the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding andshall, at the its sole cost and expense of the Indemnifying Partyexpense, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting proceeding, other than the Indemnified Party or (ii) does not involve the delivery payment of money, unless such settlement includes a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld from any and all claims arising from or delayed)related to such claim or legal proceeding. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 thirty (30) days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to provide by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner. In the event that the Welkin Shareholders constitute the Indemnifying Party, all references herein to the Indemnifying Party shall be deemed to mean the Representative, who shall have the power and authority to bind all of the Welkin Shareholders. All costs and expenses to be borne by the Indemnifying Party, if the Indemnifying Party is the Welkin Shareholders, shall be borne severally by each of the Welkin Shareholders.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification (other than as set forth below) which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyThird Party Claim, the Indemnifying Party, at his or its the sole cost and expense, mayexpense of the Indemnifying Party, upon written notice given to the Indemnified Party, which shall be no later than thirty (30) days from receipt of the Indemnification Notice, may assume the defense of any such claim or legal proceeding if (i) the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Claim. If the Indemnifying Party so assumes the defense or prosecution of any such claim or legal proceedingThird Party Claim and any litigation resulting therefrom pursuant to this Section 9.5(a), the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party Party, to conduct the defense or prosecution of such claim or legal proceeding Third Party Claim and, at the sole cost and expense of the Indemnifying Party, shall take all steps it deems necessary or appropriate in the defense or settlement thereof; provided, that the Indemnifying Party shall not be entitled to assume or control the investigation, if: (i) substantially all of the Losses associated with such Third Party Claim are not reasonably expected to be indemnifiable hereunder (including in the event the amount in dispute is reasonably likely to exceed the maximum amount for which the Indemnifying Party can then be liable pursuant to this Section 9 in light of the limitations on indemnification contained herein), (ii) such claim seeks non-monetary, equitable or injunctive relief or alleges any violation of criminal Law, (iii) the Indemnifying Party is also a party and the Indemnified Party determines in good faith after consultation with counsel that there may be one or more legal defenses available to such Indemnified Party that are different or additional to those available to the Indemnifying Party or (iv) such Claim has been made by a customer (including a prime contractor) or subcontractor of the Companies or any of their subsidiaries. The If the Indemnifying Party assumes the defense of such Third Party Claim in accordance herewith: (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of such Third Party Claim, but the Indemnifying Party shall control the investigation, defense and settlement thereof; (ii) subject to the last sentence of this Section 9.5(a), the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned) and (iii) the Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, Order or enter into any settlement with respect to such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Third Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld, delayed or delayedconditional and shall be given if the settlement by its terms (1) obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim (subject to any limitations set forth on this Section 9 ), (2) fully and finally releases the Indemnified Party completely in connection with such Third Party Claim, (3) does not impose any obligation or restriction on such Indemnified Party or its Affiliates and excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates, and (4) does not require any Indemnified Party or its Affiliates to admit any wrongdoing or liability or take or refrain from taking any action). The Indemnified Whether or not the Indemnifying Party shall be entitled to participate in (but not control) has assumed the defense of any such actionThird Party Claim, with its own counsel and at its own expense (except that the Indemnifying Party will not be responsible for the fees and expenses of the separate co-counsel obligated to the extent indemnify the Indemnified Party reasonably concludes that the counsel hereunder with respect to any settlement entered into or any judgment consented to without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned)
(b) The Indemnifying Party has selected has and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense or prosecution of any Third Party Claim and to minimize Losses from Third Party Claims, including making available records relating to such claim and furnishing employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense or prosecution of any such Third Party Claim or for testimony as witnesses in any proceeding relating to a conflict of interest)Third Party Claim.
(c) If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom Third Party Claim as provided in this Clause 6.4 within 15 days after Section 9.5 or Section 9.1 or withdraws from the date that defense of a Third Party Claim, the Indemnified Party has given notice will be entitled to assume such defense, at its sole cost and expense, including reasonable attorney’s fees and expenses, investigation expenses and all other expenses (or, if the Indemnified Party incurs a Loss with respect to the matter in question for which the Indemnified Party is entitled to indemnification pursuant to Section 9.1 or 9.2, as applicable, at the expense of the claim Indemnifying Party), upon delivery of notice to such effect to the Indemnifying Party; provided, however, that the Indemnifying Party: (i) shall have the right to participate in the defense of the Third Party Claim at its sole cost and expense, but the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriateshall control the investigation, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriatedefense and settlement thereof; and (ii) will not be obligated to indemnify the Indemnified Party hereunder for any settlement entered into or any judgment consented to without the Indemnifying Party Party’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). The reimbursement of fees, costs and expenses required by this Section 9 shall be entitled to participate in (but not control) made by periodic payments during the defense course of such actionthe investigations or defense, with his as and when bills are received or its counsel and at his or its own expenseexpenses incurred.
Appears in 1 contract
Samples: Asset Purchase Agreement (Town Sports International Holdings Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(dSection 7.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, Party at his or its sole cost and expense, expense may, upon written notice to the Indemnified PartyParty given within 15 days after the date of the notice of the claim from the Indemnified Party pursuant to Section 7.3, assume the defense of any such claim or legal proceeding with counsel approved by the Indemnified Party (which approval shall not be unreasonably withheld), if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party Party's obligations to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or the reputation of the Indemnified PartyParty and, if the Indemnified Party is the Buyer, the business, operations or future conduct of the Business.
(b) If the Indemnifying Party so assumes the defense of any such claim or legal proceedingdefense, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actiondefense, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the reasonable fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). In addition, if the Indemnifying Party so assumes such defense, it shall take all steps necessary in the defense or settlement thereof; provided, however, that the Indemnifying Party shall not consent to any settlement or to the entry of any judgment with respect to a claim or legal proceeding which does not include a complete release of the Indemnified Party from all liability with respect thereto or which imposes any liability or obligation on the Indemnified Party without the written consent of the Indemnified Party.
(c) If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: legal proceeding, (i) the Indemnified Party may defend against such claim or litigation legal proceeding (with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party) in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation legal proceeding on such terms as the Indemnified Party may deem appropriate; , and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
(d) If a customer or supplier asserts that the Company, the Parent or any Stockholder is liable to such party for a monetary or other obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification pursuant to this Article VII and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (subject to notifying the Company, the Parent and the Stockholders in reasonable detail as to the matter asserted by the customer or supplier)
(i) the Buyer shall be entitled to satisfy such obligation, without consent from the Company, the Parent or the Stockholders, (ii) the Buyer may make a claim for indemnification pursuant to this Article VII in accordance with the provisions hereof, and (iii) the Buyer shall be reimbursed, in accordance with the provisions hereof, for any such Damages for which it is entitled to indemnification pursuant to this Article VII.
Appears in 1 contract
Samples: Asset Purchase Agreement (Prodigy Communications Corp)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyThird Party Claim, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) proceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding proceedings and, at the sole cost and expense of the Indemnifying Party, shall take all steps it deems necessary or appropriate in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless such settlement or judgment (i) includes a full release of the Indemnified Party from such Third Party Claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party, and (iii) does not contain any equitable order, judgment or term which in any manner affects, restrains or interferes with the business of the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 ten (10) days after the date that it receives written notice of such claim from the Indemnified Party has given notice of the claim to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation (subject to the second to last sentence of this Section 8.4), on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such Third Party Claim in a reasonably prudent manner. The Indemnified Party shall not settle or compromise any claim by a third party for which it is entitled to indemnification hereunder without the prior written consent, which shall not be unreasonably withheld or delayed, of the Indemnifying Party; provided, however, that if suit shall have been instituted against the Indemnified Party and the Indemnifying Party shall not have taken control of such suit within ten (10) days after notification thereof, as provided in Section 12 of this Agreement, the Indemnified Party shall have the right to settle or compromise such claim upon giving notice to the Indemnifying Party so long as such settlement includes a full release of the Indemnifying Party from such Third Party Claim.
(b) The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such Third Party Claim or for testimony as witnesses in any proceeding relating to a Third Party Claim.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a third Person other than the indemnified party, the Indemnifying Party, indemnifying party at his or its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if (i) Legal Proceeding provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation entire amount of the Indemnified Party.
(b) claims asserted therein. If the Indemnifying Party so indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claim or legal proceeding and, Legal Proceedings and at the its sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified PartyLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)withheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement and concurrently with such settlement the indemnifying party pays into court the full amount of all losses, damages, expenses and liabilities to be paid by the indemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation Legal Proceeding resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation Legal Proceeding, after giving notice of the same to the indemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate; and (ii) . In any action by the Indemnifying Party indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 9.5, the indemnifying party shall not be entitled to participate question the manner in (but which the indemnified party defended such Legal Proceeding or the amount of or nature of any such settlement; provided that such limitations shall not control) apply to claims of fraud, bad faith, gross negligence or willful misconduct by the defense of such action, with his or its counsel and at his or its own expenseindemnified party.
Appears in 1 contract
Defense by the Indemnifying Party. Within fifteen (a15) Subject to Clause 6.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out days after receipt of any claim or legal proceeding by a third partythe Notice, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Claim. If the Indemnifying Party so timely assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding Third Party Claim and, at the sole cost and expense of the Indemnifying Party, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Third Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed). The If the Indemnifying Party fails to give the Indemnified Party shall be entitled to participate in written notice within fifteen (but not control15) days after the defense Indemnifying Party's receipt of any such action, with its own counsel and at its own expense (except the Notice that the Indemnifying Party will be responsible for is assuming the fees defense of such Third Party Claim or if the Indemnifying Party fails to assume and expenses continually maintain the defense of the separate co-counsel to Third Party Claim within fifteen (15) days after the extent Indemnifying Party's receipt of the Notice, the Indemnified Party reasonably concludes that may assume sole control of defense or settlement of such claim at the counsel sole cost and expense of the Indemnifying Party has selected has a conflict of interest).
(c) Party. If the Indemnifying Party does not (thereafter seeks to question the manner in which the Indemnified Party defended such Third Party Claim or is not permitted under the terms hereof to) assume the defense amount or nature of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after settlement, the date Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified did not defend or settle such Third Party may defend against such claim or litigation Claim in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expensea reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, Party assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) proceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. For purposes of this Section 10.05, the parties agree that Xxxxxxxxxxxx Xxxx & Xxxxxxxxx is acceptable legal counsel for the Stockholders and Xxxx and Xxxx LLP is acceptable legal counsel for the Buyer. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after receipt of the date that the Indemnified Party has given prompt notice of the Buyer or the Company pursuant to Section 10.04 above, the date such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
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Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 ten (10) days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified party did not defend or settle such third party claim in a reasonably prudent manner. All references herein to the Indemnifying Party shall mean, with respect to the Stockholders, the Stockholders' Representative
(b) The Indemnifying Party and Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such Third Party Claim or for testimony as witnesses in any proceeding relating to such claim.
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Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyThird Party Claim, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice given to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) proceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding andproceedings (provided that such counsel shall acknowledge in writing to the Indemnifying Party and the Indemnified Party that in conducting such defense it is representing both the Indemnifying Party and the Indemnified Party; and that if such counsel subsequently determines that there is a conflict of interest in continuing to represent both the Indemnifying Party and the Indemnified Party, such counsel shall notify such parties, in which event the Indemnified Party shall be entitled to participate in such defense with its own counsel). The reasonable fees of the counsel selected by the Indemnified Party in accordance with the preceding sentence shall be at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in Party if it is finally determined that the defense or settlement thereofIndemnifying Party is responsible for such claim. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless such settlement or judgement includes a full release of the Indemnified Party from such Third Party Claim. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 twenty (20) days after the date that it receives written notice of such claim from the Indemnified Party has given notice of the claim to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation (subject to the last sentence of Section 2.3), on such terms as the Indemnified Party may reasonably deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such Third Party Claim in a reasonably prudent manner.
(b) The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such Third Party Claim or for testimony as witnesses in any proceeding relating to a Third Party Claim.
Appears in 1 contract
Samples: Indemnification Agreement (Geac Computer Systems Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the sole cost and expenseexpense of the Indemnifying Party, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) proceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given on which notice of the such claim to the Indemnifying Partyis received: (ia) the Indemnified Party may may, at the Indemnifying Party's sole expense (payable as incurred and on demand) defend against such claim or litigation as set forth in such manner as he or it may deem appropriateSection 8.3, including----------- after giving notice of the same to the Indemnifying Party, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a third person other than the indemnified party, the Indemnifying Party, indemnifying party at his or its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if (i) Legal Proceeding provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation entire amount of the Indemnified Party.
(b) claims asserted therein. If the Indemnifying Party so indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claim or legal proceeding and, Legal Proceedings and at the its sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified PartyLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)withheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement and concurrently with such settlement the indemnifying party pays into court the full amount of all losses, damages, expenses and liabilities to be paid by the indemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation Legal Proceeding resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation Legal Proceeding, after giving notice of the same to the indemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate; and (ii) . In any action by the Indemnifying Party indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 9.5, the indemnifying party shall not be entitled to participate question the manner in (but which the indemnified party defended such Legal Proceeding or the amount of or nature of any such settlement; provided that such limitations shall not control) apply to claims of fraud, bad faith, gross negligence or willful misconduct by the defense of such action, with his or its counsel and at his or its own expenseindemnified party.
Appears in 1 contract
Samples: Merger Agreement (KIT Digital, Inc.)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(dSection 8.4(b), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, Party at his or its sole cost and expense, expense may, upon written notice to the Indemnified PartyParty given within 10 days after the date of the notice of the claim from the Indemnified Party pursuant to Section 8.3, assume the defense of any such claim or legal proceeding with counsel approved by the Indemnified Party, which approval shall not be unreasonably withheld, if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party Party's obligations to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only only, and (iii) an adverse resolution of the third party's claim would not have a material adverse effect Material Adverse Effect on the goodwill or the reputation of the Indemnified Party.
(b) , the NMC Business or the CMS Business or the future conduct of the business of the Indemnified Party, the NMC Business or the CMS Business. If the Indemnifying Party so assumes the defense of any such claim or legal proceedingdefense, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actiondefense, with its own counsel and at its own expense (except that expense. In addition, if the Indemnifying Party will be responsible for so assumes such defense, it shall take all steps necessary in the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) defense or settlement thereof. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: legal proceeding, (iA) the Indemnified Party may defend against such claim or litigation legal proceeding (with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party) in such manner as he or it may deem appropriate, including, including but not limited to, to settling such claim or litigation legal proceeding on such terms as the Indemnified Party may deem appropriate; , and (iiB) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. The party controlling the defense of a third party claim pursuant to this Section 8.4 shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto.
(b) If a customer or supplier of the NMC Business or the CMS Business asserts that the NMC Business, the CMS Business or the Buyer is liable to such party for a monetary or other obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification pursuant to this Article VIII, and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the Buyer shall be entitled to satisfy such obligation, without prior notice to or consent from either of the Sellers, (ii) the Buyer may make a claim for indemnification pursuant to this Article VIII in accordance with the provisions hereof, and (iii) the Buyer shall be reimbursed, in accordance with the provisions hereof, for any such Damages for which it is entitled to indemnification pursuant to this Article VIII.
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Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim solely for indemnification monetary damages which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyThird Party Claim, the Indemnifying Party, at his or its the sole cost and expense, mayexpense of the Indemnifying Party, upon written notice given to the Indemnified PartyParty that the Indemnifying Party shall conduct the defense actively and diligently, the Indemnifying Party may assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) proceeding. If the Indemnifying Party so assumes the defense of any such claim or legal proceedingproceeding pursuant to this Section 11.3(a), the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding proceedings and, at the sole cost and expense of the Indemnifying Party, shall take all steps it reasonably deems necessary or appropriate in the defense or settlement thereof. The ; provided that the Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim or ceasing to defend such claim if (which consent shall x) pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnified Party, or (y) if such settlement does not be unreasonably withheld or delayedinvolve expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudice. If the Indemnifying Party assumes the defense pursuant to this Section 11.3(a). The , the Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not assume (or is not permitted under the terms hereof toto assume) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 fifteen (15) days after the date that it receives notice of such claim from the Indemnified Party has given notice of the claim to the Indemnifying Party: (i1) the Indemnified Party may shall defend against such claim or litigation at the Indemnifying Party’s expense in such manner as he or it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation (subject to the last sentence of Section 11.2(a)), on such terms as the Indemnified Party may deem appropriate; , and (ii2) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. In connection with any claim other than solely for monetary damages which may give rise to indemnity hereunder, the Indemnified Party shall have the option to assume the defense of such claim or litigation upon written notice to the Indemnifying Party within fifteen (15) days after the Indemnified Party becomes aware of such claim and (A) if the Indemnified Party so exercises such option, it shall defend against such claim or litigation at the Indemnifying Party’s expense in such manner as it may deem necessary or appropriate, including, but not limited to, settling such claim or litigation (subject to the last sentence of Section 11.2(a)), on such terms as the Indemnified Party may deem appropriate, and (B) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party had the option to conduct the defense of such Third Party Claim pursuant to this Section 11 and thereafter seeks to question the manner in which the Indemnified Party defended such claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such Third Party Claim in a reasonably prudent manner. If the Indemnified Party settles or compromises such Third Party Claim without the consent of the Indemnifying Party and the Indemnifying Party shall not have had the option to conduct the defense of such Third Party Claim pursuant to this Section 11, such settlement or compromise shall not affect in any way the right of the Indemnifying Party to contest its obligation to indemnify Indemnified Party with respect to such claim pursuant to this Agreement or otherwise, including the right to contest the litigation strategy of the Indemnified Party, the cost of counsel selected by the Indemnified Party, or whether such settlement or compromise was materially affected by Parent’s existing relationship with the third party claimant.
(b) The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including (i) developing and implementing a litigation strategy, (ii) allowing counsel for both parties to attend meetings and conferences with counsel for the third party asserting the Third Party Claim, (iii) reviewing and advising on all legal pleadings by or on behalf of the Company and other defendants in the Third Party Claim and (iv) making available records relating to such claim and furnishing employees of both parties as may be reasonably necessary for the preparation of the defense of any such Third Party Claim or for testimony as witnesses in any proceeding relating to a Third Party Claim.
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Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) provided that the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) subject to the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) limitations in this Section 5). If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party it shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld), unless such settlement or delayed)judgment contains a provision releasing the Indemnified Party from all liability for such claim. The Indemnified Party shall cooperate with and shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that receipt of notice of such claim from the Indemnified Party has given notice of the claim to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving at least 15 days' prior written notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its her counsel and at his or its her own expense; in such event, the Indemnifying Party may not thereafter seek to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement.
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Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out Within seven days after receipt of any claim or legal proceeding by a third partythe Notice, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Third Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Claim. If the Indemnifying Party so timely assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding Third Party Claim and, at the sole cost and expense of the Indemnifying Party, the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided, however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Third Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) If the Indemnifying Party does not (or is not permitted under the terms hereof to) fails to assume and continually maintain the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 the Third Party Claim within 15 seven days after the date that the Indemnified Party has given notice Indemnifying Party’s receipt of the claim to the Indemnifying Party: (i) Notice, the Indemnified Party may defend against assume sole control of defense or settlement of such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as at the Indemnified Party may deem appropriate; sole cost and (ii) expense of the Indemnifying Party shall be entitled to participate in (but not control) the defense of such actionParty. New Age Beverages Corporation 2400 00xx Xxxxxx Xxxxxx, with his or its counsel and at his or its own expense.XX 00000
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a third Person other than the indemnified party, the Indemnifying Party, indemnifying party at his or its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the indemnifying parties receipt of notice of such claim, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Legal Proceeding. If the Indemnifying Party so indemnifying party assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claim or legal proceeding and, Legal Proceedings and at the its sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified PartyLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)withheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement and concurrently with such settlement the indemnifying party pays into court the full amount of all losses, damages, expenses and liabilities to be paid by the indemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation Legal Proceeding resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation Legal Proceeding, after giving notice of the same to the indemnifying party, on such terms as the Indemnified Party indemnified party may deem appropriate; and (ii) . In any action by the Indemnifying Party indemnified party seeking indemnification from the indemnifying party in accordance with the provisions of this Section 9.5, the indemnifying party shall not be entitled to participate question the manner in (but which the indemnified party defended such Legal Proceeding or the amount of or nature of any such settlement; provided that such limitations shall not control) apply to claims of fraud, bad faith, gross negligence or willful misconduct by the defense of such action, with his or its counsel and at his or its own expenseindemnified party.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification hereunder giving rise to indemnity under this Section 10 resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party (a "Third Party Claim"), the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, Party assume the defense of any such claim or legal proceeding if (i) Third Party Claim, provided that the Indemnifying Party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with in respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) claims asserted therein. If the Indemnifying Party so assumes the defense of any such claim or legal proceedingThird Party Claim, the Indemnifying Party shall select counsel that is reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, Third Party Claim and at the its sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld), unless the Indemnifying Party admits in writing its liability to hold the Indemnified Party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement and concurrently with such settlement the Indemnifying Party pays the full amount of all losses, damages, expenses and liabilities to be paid by the Indemnifying Party (or delayed)by the Indemnified Party, if applicable) in connection with such settlement. The Indemnified Party shall cooperate fully in the defense of any such claim or action by taking such actions as the Indemnifying Party may reasonably request. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, thereof with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; and (ii) . The Indemnifying Party shall cooperate fully in the defense of any such claim or litigation by taking such action as the Indemnified Party may reasonably request. The Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, thereof with his or its own counsel and at his or its own expense. Notwithstanding any of the foregoing, the Indemnifying Party shall have the right to assume the defense of any Third Party Claim at any time.
Appears in 1 contract
Samples: Merger Agreement (Micrografx Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its the Indemnifying Party's sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if if: (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, and (ii) the third party seeks monetary damages only and (iii) an adverse resolution Damages solely; provided, however, that such acknowledgment shall not be deemed or construed as any admission of the Indemnifying Party with respect to such underlying third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) party claim. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interestinterest with the Indemnified Party).
(c) . If a third party seeks monetary Damages solely and the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 Section 8.4 within 15 30 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he she or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; provided, however, that any admission by the Indemnified Party in settling any such claim or litigation shall not be deemed to be an admission for any purpose by the Indemnifying Party; and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If a third party does not seek monetary Damages solely: (x) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate; provided that the Indemnified Party shall not consent to any settlement, compromise or adjustment, or the entry of any judgment arising from such claim or litigation without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed); and (y) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action with his or its counsel and at his or its expense.
Appears in 1 contract
Samples: Merger Agreement (Thermolase Corp)
Defense by the Indemnifying Party. (a) Subject The Indemnified Party shall promptly give notice to Clause 6.4(d), in --------------------------------- connection with any claim for indemnification hereunder resulting from or arising out the Indemnifying Party after the Indemnified Party has knowledge of any claim or the commencement of legal proceeding proceedings, whichever shall first occur, against an Indemnified Party in respect of which recovery may be sought by a third party, an Indemnified Party against the Indemnifying Party, Party under the indemnity set forth in this Article and shall permit the Indemnifying Party at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation any litigation resulting from such claim. Failure of the Indemnifying Party to indemnify notify the Indemnified indemnified party of its election to defend any such action within twenty (20) Business Days after notice thereof shall have been given to them shall be deemed a waiver by the Indemnifying Party with respect of its right to all elements of so defend such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) action. If the Indemnifying Party so assumes the defense of any such claim or legal proceedinglitigation resulting therefrom, the obligations hereunder of the Indemnifying Party shall select counsel reasonably acceptable as to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take be limited to taking all reasonable steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves litigation resulting therefrom and using reasonable care in defending or settling such claims and to holding the Indemnified Parties harmless from and against any non-monetary judgement affecting losses, damages or liabilities caused by or arising out of any settlement approved by the Indemnified Party or (ii) does not involve any judgment in connection with such claim or litigation resulting therefrom. Except with the delivery of a general release in favor consent of the Indemnified Party, without Indemnifying Party shall not, in the prior written defense of such claim or any litigation resulting therefrom, consent to entry of any judgment or enter into any settlement which, in each case, does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party (which consent shall not be unreasonably withheld of a release from all liability in respect of such claim or delayed)litigation. The Indemnified Party shall be entitled to participate join in (but not control) the defense of any such action, with its own counsel and counsel, at its own expense (except that the Indemnifying Party will be responsible for the fees sole cost and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest)expense.
(cb) If The obligations of the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided Parties enumerated in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim SECTIONS 10.1 AND 10.2 are subject to the Indemnifying Partyfollowing: (i) the Indemnified Party may defend against shall notify Indemnifying Party in writing, after the Indemnified Party obtains actual knowledge of any claim or matter asserted by the Indemnified Party to fall within SECTIONS 10.1 AND/OR 10.2, of any such claim or litigation matter, in such a manner as he or it may deem appropriate, including, but which will not limited to, settling such claim or litigation on such terms as materially adversely affect the Indemnified ability of the Indemnifying Party may deem appropriateto protect its interests and to perform its obligations under SECTIONS 10.1 AND/OR 10.2; and (ii) the Indemnified Party shall take no action or fail to take any action to admit liability, waive any applicable statute of limitation, affect coverage rights under any applicable policy of insurance, and/or otherwise to materially adversely affect the ability of the Indemnifying Party shall be entitled to participate in protect its interests and to perform its obligations under SECTIONS 10.1 AND/OR 10.2; and (but not controliii) If the Indemnifying Party assumes the defense of any claim or litigation resulting from any such actionclaim or matter, the Indemnified Party shall cooperate in good faith with his or its counsel and at his or its own expensethe Indemnifying Party in the defense thereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Standard Management Corp)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 ten (10) days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
(b) The Indemnifying Party and Indemnified Party shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing employees of the Indemnified Party as may be reasonably necessary for the preparation of the defense of any such Third Party Claim or for testimony as witnesses in any proceeding relating to such claim.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Greenman Technologies Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification --------------------------------- which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) provided that the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) subject to the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) limitations in this Section 5). If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party it shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld withheld), unless such settlement or delayed)judgment contains a provision releasing the Indemnified Party from all liability for such claim. The Indemnified Party shall cooperate with and shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except expense; provided, however, that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent if the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict and the Indemnified Party have conflicting interests or different defenses available with respect to such claim or legal proceeding, the reasonable fees and expenses of interest).
(c) counsel to the Indemnified Party shall be considered "Damages" for purposes of this Agreement. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that receipt of notice of such claim from the Indemnified Party has given notice of the claim to the Indemnifying Party: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving at least 15 days' prior written notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense; in such event, the Indemnifying Party may not thereafter seek to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding Legal Proceeding by a third Person other than the indemnified party, the Indemnifying Party, indemnifying party at his or its sole cost and expenseexpense (or, in the event of any indemnity claim pursuant to Section 10.1, the Stockholder Representative at the cost and expense of the Stockholders and the Exercising Option Holders) may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within 10 calendar days after the receipt by the indemnifying party (or, in the event of any indemnity claim pursuant to Section 10.1, the receipt by the Stockholder Representative) of notice of such claim from the indemnified party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) Legal Proceeding. If the Indemnifying Party so indemnifying party (or, in the event of any indemnity claim pursuant to Section 10.1, the Stockholder Representative) assumes the defense of any such claim or legal proceedingLegal Proceeding, the Indemnifying Party indemnifying party (or, in the event of any indemnity claim pursuant to Section 10.1, the Stockholder Representative) shall select counsel reasonably acceptable to the Indemnified Party to conduct control the defense of such Legal Proceedings and at its sole cost and expense (or, in the event of any indemnity claim or legal proceeding andpursuant to Section 10.1, the Stockholder Representative at the sole cost and expense of the Indemnifying Party, Stockholders and the Exercising Option Holders) shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified PartyLegal Proceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)) unless the indemnifying party (or, in the event of any indemnity claim pursuant to Section 10.1, the Stockholder Representative at the cost and expense of the Stockholders and the Exercising Option Holders) (x) admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement and concurrently with such settlement the indemnifying party pays into court the full amount of all Damages (subject to the limitations set forth in this Agreement) to be paid by the indemnifying party (or, in the event of any indemnity claim pursuant to Section 10.1, the Stockholder Representative on behalf of the Stockholders and the Exercising Option Holders) in connection with such settlement or (y) obtains the release of the indemnified party from all claims in connection with such Legal Proceeding. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party (or, in the event of any indemnity claim pursuant to Section 10.1, the Stockholder Representative) does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation Legal Proceeding resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation Legal Proceeding in such manner as he or it may deem appropriateappropriate (but only to the extent permitted by this Agreement), including, but not limited to, settling such Legal Proceeding with the consent of the indemnifying party (or, in the event of any indemnity claim or litigation on such terms as pursuant to Section 10.1, the Indemnified Party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expenseStockholder Representative).
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third person other than the indemnified party, the Indemnifying Party, indemnifying party at his or its sole cost and expense, expense may, upon written notice to the Indemnified Partyindemnified party received by the indemnified party within ten (10) calendar days after the indemnifying party's receipt of notice of such claim, assume the defense of any such claim or legal proceeding if (i) provided that the Indemnifying Party indemnifying party acknowledges to the Indemnified Party in writing the its obligation of the Indemnifying Party to indemnify the Indemnified Party with indemnified party in respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation entire amount of the Indemnified Party.
(b) claims asserted therein. If the Indemnifying Party so indemnifying party assumes the defense of any such claim or legal proceeding, the Indemnifying Party indemnifying party shall select counsel reasonably acceptable to the Indemnified Party indemnified party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the its sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party indemnifying party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party indemnified party (which consent shall not be unreasonably withheld or delayed)withheld) unless the indemnifying party admits in writing its liability and agrees to hold the indemnified party harmless from and against any losses, damages, expenses and liabilities arising out of such settlement and concurrently with such settlement the indemnifying party pays into court the full amount of all losses, damages, expenses and liabilities to be paid by the indemnifying party in connection with such settlement. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will and shall be responsible for the fees entitled to any and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) all information and documentation relating thereto. If the Indemnifying Party indemnifying party does not assume (or is not permitted under the terms hereof tocontinue to diligently and competently prosecute) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after accordance with the date that terms hereof, the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) the Indemnified Party indemnified party may defend against such claim or litigation in such manner as he or it may deem appropriateappropriate (and the indemnifying party may participate at its own expense), including, but not limited to, settling such claim or litigation on litigation, after giving notice of the same to the indemnifying party but such terms as settlement shall not be made without the Indemnified Party may deem appropriate; and prior written consent of the indemnifying party (iiwhich consent will not be unreasonably withheld) unless the Indemnifying Party shall be entitled to participate in (but indemnified party agrees that the indemnifying party is not control) the defense of liable for such action, with his or its counsel and at his or its own expenseclaim under this Agreement.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Assets (U S Aggregates Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyproceeding, the Indemnifying Party, at his or its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) and shall thereby assume the Indemnifying Party acknowledges to costs for any Losses actually suffered or incurred by the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) regard thereto. If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party of its choice to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). If the Indemnified Party shall withhold its consent to an economic settlement tendered to it by the Indemnifying Party (the expense of which would be borne solely by the Indemnifying Party), then the amount of any indemnification liability of the Indemnifying Party specific to the claim which was the subject of the proffered and reported settlement shall not exceed the amount of such proffered and reported settlement, plus costs and expenses applicable to consummating such settlement. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 fifteen (15) days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: Indemnification Claim Notice:
(ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriateappropriate and all costs of investigation and/or litigation incurred by the Indemnified Party shall be included in the calculation of the Indemnified Party's Losses; and and
(iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Asset Purchase Agreement (Blonder Tongue Laboratories Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third partyperson other than the Indemnified Party, the Indemnifying Party, at his or its sole cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim claims or legal proceeding and, proceedings and at the sole cost and expense of the Indemnifying Party, Party shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Partyproceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest).
(c) expense. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 30 days after the date that the Indemnified Party has given notice of the such claim to the Indemnifying Partyis made: (ia) the Indemnified Party may defend against such claim or litigation in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate; , and (iib) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.
Appears in 1 contract
Samples: Securities Purchase Agreement (Biophan Technologies Inc)
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, Party at his or its sole cost and expense, expense may, upon written notice to the Indemnified Party, assume Party given within twenty (20) days after the defense date of any such the notice of the claim or legal proceeding if (i) the Indemnifying Party acknowledges to from the Indemnified Party in writing the obligation of the Indemnifying Party pursuant to indemnify the Indemnified Party with respect to all elements of such claimSection 14.4, (ii) the third party seeks monetary damages only and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or reputation of the Indemnified Party.
(b) If the Indemnifying Party so assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct assume the defense of such claim or legal proceeding and, at the sole cost and expense of proceeding. If the Indemnifying PartyParty so assumes such defense, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actiondefense, with its own counsel and at its own expense (except expense. In addition, if the Indemnifying Party so assumes such defense, it shall take all steps necessary in the defense or settlement thereof; provided, however, that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel shall not consent to any settlement or to the extent entry of any judgment with respect to a claim or legal proceeding which does not include a complete release of the Indemnified Party reasonably concludes that from all liability with respect thereto or which imposes any liability on the counsel Indemnified Party without the Indemnifying Party has selected has a conflict written consent of interest).
(c) the Indemnified Party. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: (i) legal proceeding, the Indemnified Party may defend against such claim or litigation legal proceeding (with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party) in such manner as he or it may deem appropriate, including, but not limited to, settling such claim or litigation on such terms as the Indemnified Party may deem appropriate; and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 1 contract
Defense by the Indemnifying Party. (a) Subject to Clause 6.4(d), in --------------------------------- In connection with any claim for --------------------------------- indemnification hereunder resulting from or arising out of any claim or legal proceeding by a third party, the Indemnifying Party, Party at his or its sole cost and expense, expense may, upon written notice to the Indemnified PartyParty given within twenty (20) days after the date of the notice of the claim from the Indemnified Party pursuant to Section 6.6, assume the defense of any such claim or legal proceeding with counsel approved by the Indemnified Party, which approval shall not be unreasonably withheld, if (i) the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party Party's obligations to indemnify the Indemnified Party with respect to all elements of such claim, (ii) the third party seeks monetary damages only only, and (iii) an adverse resolution of the third party's claim would not have a material adverse effect on the goodwill or the reputation of the Indemnified Party or the future conduct of the business of the Indemnified Party.
(b) . If the Indemnifying Party so assumes the defense of any such claim or legal proceedingdefense, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim or legal proceeding and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding that (i) involves any non-monetary judgement affecting the Indemnified Party or (ii) does not involve the delivery of a general release in favor of the Indemnified Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actiondefense, with its own counsel and at its own expense (except expense. In addition, if the Indemnifying Party so assumes such defense, it shall take all steps necessary in the defense or settlement thereof; provided, however, that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel shall not consent to any settlement or to the extent entry of any judgment with respect to a claim or legal proceeding which does not include a complete release of the Indemnified Party reasonably concludes that from all liability with respect thereto or which imposes any liability on the counsel Indemnified Party without the Indemnifying Party has selected has a conflict written consent of interest).
(c) the Indemnified Party. If the Indemnifying Party does not (or is not permitted under the terms hereof to) assume the defense of any such claim or litigation resulting therefrom as provided in this Clause 6.4 within 15 days after the date that the Indemnified Party has given notice of the claim to the Indemnifying Party: legal proceeding, (iA) the Indemnified Party may defend against such claim or litigation legal proceeding (with the Indemnifying Party responsible for the reasonable fees and expenses of counsel for the Indemnified Party) in such manner as he or it may deem appropriate, including, including but not limited to, to settling such claim or litigation legal proceeding on such terms as the Indemnified Party reasonably and in good faith may deem appropriate; , and (iiB) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with his or its counsel and at his or its own expense.
Appears in 1 contract
Samples: Asset Purchase Agreement (Dataware Technologies Inc)
