Defense of Third Party Claims. In the event of the assertion or commencement by any third party of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding: (a) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors; (b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and (c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Yelp Inc)
Defense of Third Party Claims. (i) In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against PBT, against any Merger Sub, the Company, Parent other Indemnitee or against any other Person) with respect to which any Indemnitor WinWin may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any WinWin Indemnitee pursuant to this Section 4, Parent 14: (A) PBT shall have the right, at its election, right to proceed with control the defense of such claim or Legal Proceeding; (B) all expenses relating to the defense of such claim or Legal Proceeding on (whether or not incurred by PBT) shall be borne and paid exclusively by WinWin; (C) WinWin shall make available to PBT any documents and materials in the possession or control of WinWin or its own with counsel reasonably satisfactory Representatives that may be necessary to the Stockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:; and (D) PBT shall have the right to settle, adjust or compromise such claim or Legal Proceeding with the consent of WinWin, which shall not be unreasonably withheld, delayed or conditioned.
(aii) subject In the event of the assertion or commencement by any Person of any claim or Legal Proceeding (whether against PBT, against any other Indemnitee or against any other Person) with respect to which PBT may become obligated to indemnify, hold harmless, compensate or reimburse any PBT Indemnitee pursuant to this Section 14: (A) PBT shall have the other provisions right to control the defense of Section 4, such claim or Legal Proceeding; (B) all reasonable expenses incurred by PBT relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
PBT; (bC) each Indemnitor WinWin shall make available to Parent PBT any documents and materials in his the possession or control of WinWin or its Representatives that may be necessary to the defense of such claim or Legal Proceeding; and
and (cD) Parent PBT shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)WinWin.
Appears in 2 contracts
Samples: Joint Venture Agreement (Winwin Gaming Inc), Joint Venture Agreement (Winwin Gaming Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any third Person (other than any party hereto) of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent Carlyle or Conexant, or against any other Indemnitee or against any other Person) with respect to which any Indemnitor party hereto may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 48, Parent the Indemnitee shall have the right, at its election, to proceed with either (i) assume the defense of such claim at the Indemnitee’s sole expense, or (ii) designate the indemnifying party to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to at the Stockholders’ Agentsole expense of the indemnifying party. If Parent the Indemnitee so proceeds with elects to designate the indemnifying party to assume the defense of any such claim or Legal Proceeding:
(a) subject the indemnifying party shall proceed to the other provisions of Section 4, all reasonable expenses relating to the defense of defend such claim or Legal Proceeding shall be borne and paid exclusively by in a diligent manner with counsel reasonably satisfactory to the IndemnitorsIndemnitee;
(b) each Indemnitor the Indemnitee shall make available to Parent the indemnifying party any non-privileged documents and materials in his the possession or control of the Indemnitee that may be necessary to the defense of such claim or Legal Proceeding;
(c) the indemnifying party shall keep the Indemnitee informed of all material developments and events relating to such claim or Proceeding;
(d) the Indemnitee (at its own expense) shall have the right to participate in the defense of such claim or Proceeding;
(e) the indemnifying party shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Indemnitee; and
(f) the Indemnitee may at any time (notwithstanding the prior designation of the indemnifying party to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding at its own expense. If the Indemnitee does not elect to designate the indemnifying party to assume the defense of any such claim or Proceeding (or if, after initially designating the indemnifying party to assume such defense, the Indemnitee elects to assume such defense), the Indemnitee may proceed with the defense of such claim or Proceeding on its own. If the Indemnitee so proceeds with the defense of any such claim or Proceeding on its own:
(i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by the Indemnitee) shall be borne and paid exclusively by the Indemnitee;
(ii) the indemnifying party shall make available to the Indemnitee any documents and materials in the possession or control of either of the indemnifying party that may be necessary to the defense of such claim or Proceeding;
(iii) the Indemnitee shall keep the indemnifying party informed of all material developments and events relating to such claim or Proceeding; and
(civ) Parent the Indemnitee shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to Proceeding with the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the prior written consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentindemnifying party; provided, however, that the Stockholders’ Agent may indemnifying party shall not settleunreasonably withhold such consent. Such consent will not be considered to have been unreasonably withheld if the settlement, adjust adjustment or compromise does not provide for a full release of the indemnifying party from any such further claims with respect to the matter at issue. The foregoing provisions of this Section 8.6 shall not apply to any claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)subject to indemnification pursuant to Section 8.10.
Appears in 2 contracts
Samples: Contribution Agreement (Jazz Semiconductor Inc), Contribution Agreement (Jazz Semiconductor Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party of any claim or Legal Proceeding (whether against which for the avoidance of doubt includes any Merger Sub, the Company, Parent claims or any other Personcontroversies related to Taxes) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4Article 8 (a “Third-Party Claim”), Parent the Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agent. If Parent the Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 4Article 8, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the IndemnitorsIndemnitors upon receipt of invoices issued by counsel defending such claim or Legal Proceeding;
(b) each Indemnitor shall make reasonably available to Parent the Purchaser any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent the Purchaser shall not have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding Third-Party Claim without the prior written consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent which consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim unreasonably withheld, conditioned or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceedingdelayed). If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent The Purchaser shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, the Purchaser or any Merger Sub or of the CompanyAcquired Companies; provided, however, that any failure on the part of Parent the Purchaser to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 Article 8 unless (except i) such failure has a materially prejudicial effect on the defenses or other rights available to the extent Indemnitors with respect to such Third-Party Claim or the indemnification obligations are materially increased as a result of such failure materially prejudices or (ii) such Claim Notice is not provided within the defense of such Legal Proceeding)periods set forth in Section 8.1, in which case no claim may be made by any Indemnitee for indemnification. If Parent the Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentthe Purchaser; provided, however, that the Indemnitee shall deliver to the Stockholders’ Agent, promptly following the Indemnitee’s receipt thereof, copies of all material notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim and the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding Third-Party Claim without the prior written consent of Parent the Purchaser (which consent may not be unreasonably withheld withheld, conditioned or delayed).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (OMNICELL, Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against the Surviving Corporation, any Merger Sub, the CompanyAcquired Entity, Parent or any other Person) with respect to which Parent in good faith believes that any Indemnitor Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to Section 410.2(a), Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the StockholdersSecurityholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 410, all reasonable expenses relating to the defense of such claim or Legal Proceeding (and all amounts due pursuant to any settlement, adjustment or compromise of such claim or Legal Proceeding) shall be borne and paid exclusively by the IndemnitorsEffective Time Holders to the extent such expenses or Damages are indemnifiable pursuant to Section 10.2(a)(ix);
(b) each Indemnitor Effective Time Holder shall make available to Parent any documents and materials in his such Effective Time Holder’s possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding without the consent of the Securityholders’ Agent; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the StockholdersSecurityholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlementAgent, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the StockholdersThe Securityholders’ Agent consents shall have the right to settlereceive copies of all pleadings, adjust notices and communications with respect to the Legal Proceeding to the extent that receipt of such documents does not affect any privilege relating to Parent or compromise any Parent Indemnitee and subject to execution by the Securityholders’ Agent of Parent’s standard non-disclosure agreement to the extent that such claim materials contain confidential or Legal Proceedingproprietary information, which such settlementnon-disclosure agreement shall not prohibit the Securityholders’ Agent from communicating any such information solely with the members of the advisory board who have been designated to act on behalf of the Effective Time Holders pursuant to an engagement letter with the Securityholders’ Agent and who have a need to know such information, adjustment or compromise provided that any such recipients are subject to confidentiality obligations with respect thereto. The Securityholders’ Agent, at the Effective Time Holders’ cost and expense, shall be conclusive evidence of entitled to participate in the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement defense of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, Proceedings that any failure on the part of Parent relates to so notify the Stockholders’ Agent shall not limit any Taxes of the obligations of Acquired Companies for Pre-Closing Tax Periods if the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense resolution of such Legal ProceedingProceeding would reasonably be expected to materially increase the Effective Time Holders’ liability for Pre-Closing Taxes under Section 10.2(a). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the StockholdersSecurityholders’ Agent will may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the StockholdersSecurityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholders’ Agent shall not limit any of the obligations of the Effective Time Holders under this Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against the Purchaser, against any Merger Sub, the Company, Parent other Indemnitee or against any other Person) with respect to which any Indemnitor the Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 410, Parent the Purchaser shall have the right, at its election, to proceed with designate the Seller to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to at the Stockholders’ Agentsole expense of the Seller. If Parent the Purchaser so proceeds with elects to designate the Seller to assume the defense of any such claim or Legal Proceeding:
(a) subject the Seller shall proceed to the other provisions of Section 4, all reasonable expenses relating to the defense of defend such claim or Legal Proceeding shall be borne and paid exclusively by in a diligent manner with counsel satisfactory to the IndemnitorsPurchaser;
(b) each Indemnitor the Purchaser shall make available to Parent the Seller any non-privileged documents and materials in his the possession or control of the Purchaser that may be necessary to the defense of such claim or Legal Proceeding;
(c) the Seller shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Seller to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such claim or Proceeding on its own:
(i) the Seller shall make available to the Purchaser any documents and materials in the possession or control of the Seller that may be necessary to the defense of such claim or Proceeding;
(ii) the Purchaser shall keep the Seller informed of all material developments and events relating to such claim or Proceeding; and
(ciii) Parent the Purchaser shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding without the consent of the Seller; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be considered conclusive evidence of the amount of Damages suffered or incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub Purchaser or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)other Indemnitees.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor the Selling Parties may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee of Purchaser’s Indemnitees pursuant to Section 45, Parent Purchaser shall have the right, at its election, to proceed with designate Seller to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory at the sole expense of Seller.
(b) If Purchaser so elects to the Stockholders’ Agent. If Parent so proceeds with designate Seller to assume the defense of any such claim or Legal Proceeding:
Proceeding (ai) subject Seller shall proceed to the other provisions of Section 4, all reasonable expenses relating to the defense of defend such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
in a diligent manner with counsel satisfactory to Purchaser, (bii) each Indemnitor Purchaser shall make available to Parent Seller any non-privileged documents and materials in his the possession of Purchaser or control its Affiliates that may be necessary to the defense of such claim or Legal Proceeding, (iii) Seller shall keep Purchaser informed of all material developments and events relating to such claim or Proceeding, (iv) Purchaser shall have the right to employee its own counsel (at its expense) to participate in the defense of such claim or Proceeding, (v) Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of Purchaser; andprovided, however, that Purchaser shall not unreasonably withhold such consent, and (vi) Purchaser may at any time (notwithstanding the prior designation of Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding.
(c) Parent If Purchaser does not elect to designate Seller to assume the defense of any such claim or Proceeding (or if, after initially designating Seller to assume such defense, Purchaser elects to assume such defense), Purchaser may proceed with the defense of such claim or Proceeding on its own. If Purchaser so proceeds with the defense of any such claim or Proceeding on its own (i) all expenses relating to the defense of such claim or Proceeding shall be borne and paid exclusively by the Selling Parties, (ii) the Selling Parties shall make available to Purchaser any documents and materials in the possession or control of the Seller or its Affiliates that may be necessary to the defense of such claim or Proceeding, (iii) Purchaser shall keep Seller and Seller informed of all material developments and events relating to such claim or Proceeding, and (iv) Purchaser shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of Seller; provided, however, that notwithstanding Seller shall not unreasonably withhold such consent.
(d) Notwithstanding anything in this Agreement to the contrary in Section 4.2(a)(ix) or Section 4.5contrary, if Parent settlesPurchaser determines in good faith that it is likely that a Proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, adjusts Purchaser may, regardless of whether or compromises not Purchaser had previously elected to allow the Proceedings to be conducted pursuant to Section 5.4(a) above, at any time by notice to the Selling Parties assume the exclusive right to defend, compromise or settle such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)Selling Parties.
Appears in 1 contract
Defense of Third Party Claims. In Except as set forth below, in the event of the assertion or commencement by any third Person (other than a party to this Agreement) of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any an Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse indemnify any Indemnitee pursuant to this Section 46, Parent such Indemnitee shall have the right, at its election, be entitled to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agent. If Parent so proceeds with control the defense of any such claim or Legal Proceeding:
(a) subject Proceeding with counsel reasonably satisfactory to the other provisions of Section 4Indemnitor, all reasonable expenses relating to and the defense of such claim or Legal Proceeding Indemnitor shall be borne and paid exclusively by the Indemnitors;
entitled to participate in (bbut not control) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, with its counsel and at its own expense; provided, however, that if the Stockholders’ Agent will proceed with Indemnitee does not assume the defense of any such claim or Legal Proceeding within 15 days after the receipt of notice of such claim or Legal Proceeding, the Indemnitor may elect to defend against such claim or Legal Proceeding and, upon giving notice to the Indemnitee of such election, shall be entitled to control the defense of such claim or Legal Proceeding indefinitely thereafter. Notwithstanding the foregoing, in no event shall the Indemnitor be permitted to defend against any such claim or Legal Proceeding: (i) unless the Indemnitor agrees in writing to indemnify the Indemnitee for any Damages arising out of such claim or Legal Proceeding; (ii) unless the Indemnitor provides the Indemnitee with counsel evidence reasonably satisfactory acceptable to Parent; provided, however, the Indemnitee that the Stockholders’ Agent may Indemnitor will have the financial resources to defend against such claim or Legal Proceeding and fulfill its indemnification obligations hereunder; (iii) if the claim or Legal Proceeding involves a criminal charge; (iv) if the claim or Legal Proceeding seeks, as its principal remedy, an injunction or other equitable relief; (v) if settlement of, or an adverse judgment with respect to, the claim or Legal Proceeding would, in the good faith judgment of the Indemnitee, likely establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnitee; (vi) if the Indemnitee reasonably determines that the aggregate amount of Damages arising out of such claim or Legal Proceeding would exceed the maximum indemnification liability of the Indemnitor with respect to such claim or Legal Proceeding under this Section 6 (taking into account any previous indemnification payments paid or payable by the Indemnitor hereunder); or (vii) if the Indemnitor does not settle, adjust conduct the defense of such claim or Legal Proceeding actively and diligently. Neither the Indemnitee nor the Indemnitor shall settle or compromise any such claim or Legal Proceeding without the prior written consent of Parent (the applicable Indemnitor or Indemnitee, as the case may be, which consent may shall not be unreasonably withheld or delayed).
Appears in 1 contract
Defense of Third Party Claims. In If any lawsuit or enforcement ----------------------------- action is filed against any indemnified Person, written notice thereof shall be given to the indemnifying Person(s) as promptly as practicable (and in any event within 15 calendar days after the service of the assertion citation or commencement by any third party summons). The failure of any claim indemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the indemnifying Person(s) demonstrate they were actually prejudiced by such failure. After such notice, if the indemnifying Person(s) shall acknowledge in writing to the indemnified Person that the indemnifying Person(s) shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or Legal Proceeding action, then the indemnifying Person(s) shall be entitled, if its so elects at its own cost, risk and expense, (whether against i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of their own choice to handle and defend the same unless the named parties to such action or proceeding include both an indemnifying Person and the indemnified Person and the indemnified Person has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified Person that are different from or additional to those available to the indemnifying Person(s), in which event the indemnified Person shall be entitled, at the indemnifying Person(s)'s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified Person, such consent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the indemnifying Person(s) and its attorneys in the investigation, trial and defense of such lawsuit or action and any Merger Subappeal arising therefrom; provided, however, -------- ------- that the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the rightindemnified Person may, at its electionown cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to proceed with insurers. If the indemnifying Person fails to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory within 15 calendar days after receipt of the notice of claim, the indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the Stockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(aindemnifying Person) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settleundertake, adjust at the indemnifying Person's cost, risk and expense, the defense, compromise or compromise settlement of such claim or Legal Proceedingon behalf of and for the account and risk of the indemnifying Person; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim shall -------- ------- not be compromised or Legal Proceeding settled without the written consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent indemnifying Person, which consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceedingunreasonably withheld. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence indemnified Person assumes the defense of the amount of Damages incurred by claim, the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify indemnified Person will keep the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice indemnifying Person reasonably informed of the commencement progress of any such Legal Proceeding defense, compromise or settlement. The indemnifying Person shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 12.2 and for any final judgment (subject to any right of appeal), and the indemnifying Persons agree to indemnify and hold harmless an indemnified Person from and against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense Damages by reason of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim settlement or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)judgment.
Appears in 1 contract
Samples: Merger Agreement (Eoexchange Inc/Ca)
Defense of Third Party Claims. In As a condition of indemnification, in the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated of the Buyer Group Indemnitees or Seller Indemnitees shall have the right to hold harmless, indemnify, compensate or reimburse any Indemnitee seek indemnification pursuant to this Section 49, Parent the Persons seeking indemnification shall promptly give notice of the claim or Legal Proceeding to the Person from whom indemnification is sought. The Person receiving such notice shall have the right, at its election, exercisable within fifteen (15) business days after such notice is given, to proceed with assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to and at its expense, and on behalf of the Stockholders’ AgentPerson or Persons seeking indemnification. If Parent so proceeds with such an election to assume the defense of any such claim or Legal Proceedingis made:
(a) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim Person or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor Persons seeking indemnification shall make available to Parent the Person assuming the defense any documents and materials in his their possession or control that may be necessary to the defense of such claim or Legal Proceeding (without any need to disclose privileged information), and shall otherwise provide reasonable cooperation and assistance in the defense of the claim or Legal Proceeding;
(b) it will be deemed established for purposes of this Agreement that the claims made in the Legal Proceeding are subject to the indemnifications provisions of this Section 9;
(c) the Person or Persons seeking indemnification shall be entitled to participate (at their own expense) in the defense of such Legal Proceeding; and
(cd) Parent The Person assuming the defense shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding only with the consent of the Person or Persons seeking indemnification; provided, however, that notwithstanding anything such consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Parent may elect to assume the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises defense of any such claim or Legal Proceeding without the consent of the Stockholders’ Agent if (it being understood that if Parent requests that the Stockholders’ Agent consent i) Seller or Stockholder is a party to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlementand counsel to Parent shall conclude in good faith that joint representation would give rise to a conflict of interest, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with (ii) such claim or Legal Proceeding and of Indemnitees obligation relates directly or indirectly to indemnify the Indemnitors under this Section 4 for such claim any failure or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any alleged failure on the part of Parent Parent, the Buyer Group or Seller to so notify pay any Tax or to comply with any Legal Requirement relating to Taxes. In the Stockholders’ Agent shall event that the Person or Persons from whom indemnification is sought do not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices assume the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with Person or Persons seeking indemnification may defend and settle the defense of such claim or Legal Proceeding with counsel reasonably satisfactory and all costs of defense and other Damages shall be subject to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent indemnification provisions of Parent (which consent may not be unreasonably withheld or delayed)this Agreement.
Appears in 1 contract
Defense of Third Party Claims. In If any lawsuit or enforcement action is filed against any indemnified Person, written notice thereof shall be given to the Shareholder Representative as promptly as practicable (and in any event within 15 calendar days after the service of the assertion citation or commencement by any third party summons). The failure of any claim or Legal Proceeding (whether against any Merger Subindemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory except to the Stockholders’ Agentextent that the Shareholders (other than National) demonstrate they were actually prejudiced by such failure. If Parent so proceeds with After such notice, if the defense of any such claim or Legal Proceeding:
(a) subject Shareholder Representative shall acknowledge in writing to the indemnified Person that the Shareholders (other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding than National) shall be borne and paid exclusively by obligated under the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense terms of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee its indemnity hereunder in connection with such claim lawsuit or Legal Proceeding action, then the Shareholders (other than National) shall be entitled, if they so elect at their own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or whether action, (ii) to employ and engage attorneys of their own choice to handle and defend the Indemnitors same unless the named parties to such action or proceeding include both a Shareholder and the indemnified Person and the indemnified Person has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified Person that are obligated different from or additional to indemnify those available to the Indemnitors under this Section 4 for Shareholder(s), in which event the indemnified Person shall be entitled, at the Shareholders' cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim claim, which compromise or Legal Proceeding. If settlement shall be made only with the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceedingwritten consent of the indemnified Person, such settlementconsent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the Shareholders (other than National) and their attorneys in the investigation, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding trial and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of lawsuit or action and any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentappeal arising therefrom; provided, however, that the Stockholders’ Agent may not settleindemnified Person may, adjust at its own cost, participate in the investigation, trial and defense of such lawsuit or compromise action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. If the Shareholders (other than National) fail to assume the defense of such claim within 15 calendar days after receipt of the notice of claim by the Shareholder Representative, the indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the Shareholder Representative) have the right to undertake, at the cost, risk and expense of the Shareholders (other than National), the defense, compromise or Legal Proceeding settlement of such claim on behalf of and for the account and risk of the Shareholders (other than National); provided, however, that such claim shall not be compromised or settled without the prior written consent of Parent (the Shareholder Representative, which consent may shall not be unreasonably withheld withheld. If the indemnified Person assumes the defense of the claim, the indemnified Person will keep the Shareholder Representative reasonably informed of the progress of any such defense, compromise or delayedsettlement. The Shareholders (other than National) shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 12.2 and for any final judgment (subject to any right of appeal), and the Shareholders (other than National) shall indemnify and hold harmless an indemnified Person from and against any Damages by reason of such settlement or judgment.
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 49, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 49, all reasonable and documented out-of-pocket expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against the Surviving Company, any Merger Sub, the CompanyAcquired Entity, Parent or any other Person) with respect to which any Indemnitor Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to Section 410, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the StockholdersSecurityholders’ Agent, and the Securityholders’ Agent shall be entitled, at its expense, to participate in, but not determine or conduct, the defense of such claim or Legal Proceeding and Parent shall keep the Securityholders’ Agent reasonably apprised of any material development in such Legal Proceeding, and promptly provide to the Securityholders’ Agent copies of all pleadings, notices and communications with respect to such claim or Legal Proceeding to the extent that receipt of such documents does not waive any privilege. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 410, all reasonable expenses relating to the defense of such claim or Legal Proceeding (and all amounts due pursuant to any settlement, adjustment or compromise of such claim or Legal Proceeding) shall be borne and paid exclusively by the IndemnitorsEffective Time Holders;
(b) each Indemnitor Effective Time Holder shall make available to Parent any documents and materials in his such Effective Time Holder’s possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding without the consent of the Securityholders’ Agent; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the StockholdersSecurityholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlementAgent, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or whether that such Damages are indemnifiable hereunder (it being understood that if Parent requests that the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the StockholdersSecurityholders’ Agent consents consent to settle, adjust or compromise such claim or Legal Proceeding, such a settlement, adjustment or compromise shall be conclusive evidence of compromise, the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the StockholdersSecurityholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent unreasonably withhold or delay such failure materially prejudices the defense of such Legal Proceedingconsent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the StockholdersSecurityholders’ Agent will may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the StockholdersSecurityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed) unless (i) such judgment, settlement or compromise includes an unconditional release from all liability with respect to the claim in favor of the Parent Indemnitees and (ii) the sole relief provided in connection with such judgment, settlement or compromise is monetary damages that are paid in full by the Effective Time Holders (including from the Escrow Fund) or any other relief that is enforceable only against the Effective Time Holders. Parent shall give the Securityholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, a Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholders’ Agent shall not limit any of the obligations of the Effective Time Holders under this Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Samples: Merger Agreement (Splunk Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Subthe Surviving Corporation, the Company, against Parent or against any other Person) with respect to which any Indemnitor Indemnitee may become obligated be entitled to hold be held harmless, indemnifyindemnified, compensate compensated or reimburse any Indemnitee reimbursed pursuant to this Section 410, (a) Parent shall notify the Stockholders’ Representative promptly after Parent receives written notice of such claim or Legal Proceeding (it being understood that any failure by Parent to so promptly notify the Stockholders’ Representative shall have no effect on an Indemnitee’s ability to recover Damages pursuant to this Section 10, except to the extent that the defense of such claim or Legal Proceeding is materially prejudiced thereby), and (b) Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory acceptable to the Stockholders’ AgentRepresentative. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
: (ai) subject to the other provisions of Section 4, all reasonable out-of-pocket expenses relating to the defense of such claim or Legal Proceeding shall shall, subject to Section 10.3, be borne and paid exclusively from the Escrow Fund (with Parent and the Stockholders’ Representative being required to jointly execute and deliver to the Escrow Agent such written instructions as Parent may determine in good faith to be appropriate in order to ensure the timely payment of such expenses from the Escrow Fund) or, if such claim or Legal Proceeding relates to any matter referred to in Section 10.2(b) or 10.2(c), exclusively by the Indemnitors;
Key Stockholder or Key Stockholders obligated to hold harmless, indemnify, compensate and reimburse such Indemnitee; (bii) the Stockholders’ Representative and each Indemnitor Key Stockholder shall use commercially reasonable efforts to make available to Parent any documents and materials that Parent determines in his possession or control that good faith may be necessary to the defense of such claim or Legal Proceeding; and
and (ciii) Parent shall have the right to not settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the prior written consent of the Stockholders’ Agent Representative (it being understood that if Parent requests that the Stockholders’ Agent which consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim unreasonably withheld or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceedingdelayed). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with Representative shall (at the defense sole expense of the Non-Dissenting Stockholders or, if such claim or Legal Proceeding with counsel reasonably satisfactory relates to Parent; providedany matter referred to in Section 10.2(b) or 10.2(c), however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).at
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor of the Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 49, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agentown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by from the IndemnitorsEscrow Amount;
(b) each Indemnitor shall make available to Parent any documents and materials in his or its possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the Stockholders’ Agent; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim unreasonably withheld or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceedingdelayed. Parent shall (i) give the Stockholders’ Agent prompt written notice of the commencement of any such claim or Legal Proceeding against Parent, any Merger Sub or the CompanyCompany promptly after Parent becomes aware of such claims or Legal Proceeding and (ii) use reasonable efforts to notify the Stockholders’ Agent of all material developments relating to such claims or Legal Proceeding; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under this Section 4 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to the Parent; provided, however, that the Stockholders’ Agent (i) will use reasonable efforts to notify Parent of all material developments relating to such claim or Legal Proceeding and (ii) may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Samples: Merger Agreement (Ipass Inc)
Defense of Third Party Claims. In For a period of two years from the date of this Agreement, in the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against PeopleNet International Corporation, against any Merger Sub, the Company, Parent other Indemnitee or against any other Person) with respect to which any Indemnitor of the Significant Shareholders or PC may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 4, Parent PeopleNet International Corporation shall have the right, at its election, to proceed with require the Significant Shareholders to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to at the Stockholders’ Agentsole expense of the Significant Shareholders and PC. If Parent PeopleNet International Corporation so proceeds with elects to require the Significant Shareholders to assume the defense of any such claim or Legal Proceeding:
(a) subject the Significant Shareholders shall proceed to the other provisions of Section 4, all reasonable expenses relating to the defense of defend such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitorsin a diligent manner with counsel satisfactory to PeopleNet International Corporation;
(b) each Indemnitor PeopleNet International Corporation shall make available to Parent the Significant Shareholders any non-privileged documents and materials in his the possession or control of PeopleNet International Corporation that may be necessary to the defense of such claim or Legal Proceeding;
(c) the Significant Shareholders shall keep PeopleNet International Corporation informed of all material developments and events relating to such claim or Proceeding;
(d) PeopleNet International Corporation shall have the right to participate in the defense of such claim or Proceeding;
(e) the Significant Shareholders shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of PeopleNet International Corporation; and
(f) PeopleNet International Corporation may at any time (notwithstanding the prior designation of the Significant Shareholders to assume the defense of such claim or Proceeding) elect to assume the defense of such claim or Proceeding. If PeopleNet International Corporation does not require the Significant Shareholders to assume the defense of any such claim or Proceeding (or if, after initially requiring the Significant Shareholders to assume such defense, PeopleNet International Corporation elects to assume such defense), PeopleNet International Corporation may proceed with the defense of such claim or Proceeding on its own. If PeopleNet International Corporation so proceeds with the defense of any such claim or Proceeding on its own:
(i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by PeopleNet International Corporation) shall be borne and paid exclusively by the Significant Shareholders and PC;
(ii) the Significant Shareholders and PC shall make available to PeopleNet International Corporation any documents and materials in the possession or control of either of the Significant Shareholders or PC that may be necessary to the defense of such claim or Proceeding;
(iii) PeopleNet International Corporation shall keep the Significant Shareholders informed of all material developments and events relating to such claim or Proceeding; and
(civ) Parent PeopleNet International Corporation shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)Significant Shareholders.
Appears in 1 contract
Samples: Sale of Assets Agreement (Peoplenet International Corp)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent Purchaser or any other Person) Indemnitee with respect to which any Indemnitor the Company may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 49, Parent Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agentown. If Parent so proceeds In connection with the defense of any such claim or Legal Proceeding:
: (ai) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor Company shall make available to Parent Purchaser any documents and materials in his any Acquired Company’s possession or control or in the control of any Acquired Company’s Representatives that may be necessary to the defense of such claim or Legal Proceeding; and
(cii) Parent the Company shall be entitled, at its own expense (A) to consult with Purchaser with respect to, but not to determine or conduct, the defense of such claim and (B) to receive copies of complaints, pleadings, notices and material written communications with respect to such claim; provided, however, that Purchaser shall not be required to disclose any information to the Company if such disclosure would reasonably be expected to jeopardize the protection of the attorney-client privilege, work product or similar protection or other applicable legal privilege; and (iii) Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent)Company, such settlement, adjustment or compromise shall not be conclusive evidence determinative of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent Purchaser shall give the Stockholders’ Agent Company prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or Purchaser with respect to which Purchaser intends to demand indemnification from the Company; provided, however, that any failure on the part of Parent Purchaser to so notify the Stockholders’ Agent Company of such Legal Proceeding shall not limit any of the obligations of the Indemnitors Company under this Section 4 9.4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
(b) In the event of the assertion or commencement by any Person of any claim or Legal Proceeding against an Acquired Company with respect to which the Company may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 9, (x) the Company shall defend such claim or Legal Proceeding with counsel selected by Purchaser, (y) Purchaser shall have the sole and absolute right and authority to determine and conduct the defense of such claim or Legal Proceeding, including with respect to any decision to settle, adjust or compromise such claim or Legal Proceeding, and no Consent or approval of the Company, the board of directors of the Company (or any committee thereof) or any shareholder of the Company will be required for any action taken by Purchaser pursuant to this clause “(y)” and (z) all fees (including attorneys’ fees), charges, costs (including costs of investigation) and expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Company. If Parent does not elect to proceed In connection with the defense of any such claim or Legal Proceeding, : (i) the Stockholders’ Agent will proceed with Company shall make available to Purchaser any documents and materials in any Acquired Company’s possession or control or in the defense control of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).Acquired 59
Appears in 1 contract
Samples: Share Issuance and Acquisition Agreement (Walmart Inc.)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent Nvidia or any other Person) Indemnitee with respect to which any Indemnitor E&S may become obligated to indemnify, hold harmless, indemnifydefend, compensate or reimburse any Indemnitee pursuant to this Section 43 (other than a claim or Proceeding challenging the validity or enforceability of the Patents as to which there is no occurrence of an event described in Section 3.2), Parent Nvidia shall have the right, at its election, to proceed with designate E&S to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory at the sole expense of E&S. If Nvidia so elects to the Stockholders’ Agent. If Parent so proceeds with designate E&S to assume the defense of any such claim or Legal Proceeding:
(a) subject E&S shall proceed to the other provisions of Section 4, all reasonable expenses relating to the defense of defend such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitorsin a diligent manner with counsel satisfactory to Nvidia;
(b) each Indemnitor Nvidia shall make available to Parent E&S any documents and materials in his the possession or control of Nvidia that may be necessary to the defense of such claim or Legal Proceeding;
(c) E&S shall keep Nvidia informed of all material developments and events relating to such claim or Proceeding;
(d) Nvidia shall have the right to participate in the defense of such claim or Proceeding at its sole expense;
(e) E&S shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of Nvidia, which consent will not be unreasonably withheld or delayed; and
(f) Nvidia may at any time (notwithstanding the prior designation of E&S to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding at its sole expense. If Nvidia does not elect to designate E&S to assume the defense of any such claim or Proceeding (or if, after initially designating E&S to assume such defense, Nvidia elects to assume such defense), Nvidia may proceed with the defense of such claim or Proceeding on its own. If Nvidia so proceeds with the defense of any such claim or Proceeding on its own:
(i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by Nvidia) shall be borne and paid exclusively by Nvidia;
(ii) E&S shall make available to Nvidia any documents and materials in the possession or control of E&S that may be necessary to the defense of such claim or Proceeding;
(iii) Nvidia shall keep E&S informed of all material developments and events relating to such claim or Proceeding; and
(civ) Parent Nvidia shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of E&S; providedPROVIDED, howeverHOWEVER, that notwithstanding E&S shall not unreasonably withhold such consent. Notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5this Agreement, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal ProceedingProceeding in which the validity or enforceability of the Patents is at issue, the Stockholders’ Agent will proceed and as to which there is no occurrence of an event described in Section 3.2, shall be handled in accordance with the defense provisions of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)Exclusive Patent License Agreement.
Appears in 1 contract
Samples: Patent Purchase and License Agreement (Evans & Sutherland Computer Corp)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Subthe Purchaser, the CompanyParent, Parent against any other Indemnitee or against any other Person) with respect to which any Indemnitor the Shareholder or the Seller may become obligated to indemnify, hold harmless, indemnifycompensate, compensate pay or reimburse any Indemnitee pursuant to this Section 48, the Purchaser and the Parent shall have the right, at its election, to designate either the Seller or the Shareholder to assume the defense of such claim or Proceeding at the sole expense of the Shareholder or the Seller. If the Purchaser or the Parent so elects:
(A) the designated party shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the Purchaser and the Parent;
(B) the designated party shall make available to the designated party any non-privileged documents and materials in the possession of the Purchaser or the Parent that may be necessary to the defense of such claim or Proceeding;
(C) the designated party shall keep the Purchaser and the Parent informed of all material developments and events relating to such claim or Proceeding;
(D) the Purchaser and the Parent shall have the right to participate in the defense of such claim or Proceeding;
(E) the designated party shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Parent (and of the Purchaser, to the extent the Purchaser is a party to the Proceeding); and
(F) the Purchaser or the Parent may at any time (notwithstanding the prior designation of the Seller or the Shareholder, to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser or the Parent does not elect to designate the Seller or the Shareholder to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller or the Shareholder to assume such defense, the Purchaser or the Parent elects to assume such defense), the Purchaser or the Parent may proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agentown. If the Purchaser or the Parent so proceeds with the defense of any such claim or Legal ProceedingProceeding on its own:
(aA) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding (whether or not incurred by the Purchaser or the Parent) shall be borne and paid exclusively by the IndemnitorsSeller;
(bB) each Indemnitor the Shareholder and the Seller shall make available to the Purchaser or the Parent any documents and materials in his the possession or control of either the Shareholder or the Seller that may be necessary or useful to the defense of such claim or Legal Proceeding;
(C) the Purchaser or the Parent shall keep the Shareholder and Seller reasonably informed of material developments and events relating to such claim or Proceeding; and
(cD) the Purchaser or the Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without with the consent of the Stockholders’ Agent Shareholder or the Seller; PROVIDED, HOWEVER, that (it being understood that if Parent requests that the Stockholders’ Agent i) such consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence unreasonably withheld and (ii) if the Purchaser or the Parent determines in good faith that it is likely that a Proceeding may adversely affect the Purchaser or the Parent other than as a result of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated monetary damage for which it would be entitled to indemnify the Indemnitors indemnification under this Section 4 for such claim Agreement, the Purchaser or Legal Proceeding. If the Stockholders’ Agent consents Parent may assume the exclusive right to defend, settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld the Shareholder or delayed)the Seller.
Appears in 1 contract
Defense of Third Party Claims. In If any lawsuit or enforcement action is filed against any indemnified Person, written notice thereof shall be given to the indemnifying Person as promptly as practicable (and in any event within 15 days after the service of the assertion citation or commencement by any third party summons). The failure of any claim or Legal Proceeding (whether against any Merger Subindemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory except to the Stockholders’ Agentextent that the indemnifying Person demonstrates that it was actually prejudiced by such failure. If Parent so proceeds with After such notice, if the defense of any such claim or Legal Proceeding:
(a) subject indemnifying Person acknowledges in writing to the other provisions of Section 4, all reasonable expenses relating to indemnified Person that the defense of such claim or Legal Proceeding indemnifying Person shall be borne and paid exclusively by obligated under the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense terms of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee its indemnity hereunder in connection with such claim lawsuit or Legal Proceeding action and demonstrates to the reasonable satisfaction of the indemnified Person the financial capacity to defend and resolve such lawsuit or whether action, then the Indemnitors indemnifying Person shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both an indemnifying Person and the indemnified Person and the indemnified Person has been advised by counsel that there may be one or more legal defenses available to such indemnified Person that are obligated different from or additional to indemnify those available to the Indemnitors under this Section 4 for indemnifying Person, in which event the indemnified Person shall be entitled, at the indemnifying Person’s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim claim, which compromise or Legal Proceeding. If settlement shall be made only with the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceedingwritten consent of the indemnified Person, such settlementconsent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the indemnifying Person and its attorneys in the investigation, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding trial and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of lawsuit or action and any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentappeal arising therefrom; provided, however, that the Stockholders’ Agent may not settleindemnified Person may, adjust at its own cost, participate in the investigation, trial and defense of such lawsuit or compromise action and any appeal arising therefrom. The Parties shall cooperate with each other in any notifications to insurers. If the indemnifying Person fails to assume the defense of such claim within 15 days after receipt of the notice of claim, the indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying Person) have the right to undertake, at the indemnifying Person’s cost, risk and expense, the defense, compromise or Legal Proceeding settlement of such claim on behalf of and for the account and risk of the indemnifying Person; provided, however, that such claim shall not be compromised or settled without the prior written consent of Parent (the indemnifying Person, which consent may shall not be unreasonably withheld withheld. If the indemnified Person assumes the defense of the claim, the indemnified Person will keep the indemnifying Person reasonably informed of the progress of any such defense, compromise or delayedsettlement. The indemnifying Person shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 12.3 and for any final judgment (subject to any right of appeal), and the indemnifying Person agrees to indemnify and hold harmless an indemnified Person from and against any Damages by reason of such settlement or judgment.
Appears in 1 contract
Samples: Formation and Contribution Agreement (Tegal Corp /De/)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, any of the Company, Parent or any other Person) with respect to which any Indemnitor the Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 410.2, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory consented to in writing by the Stockholders’ AgentIndemnitors, which consent shall not be unreasonably withheld. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 410, all reasonable reasonable, actual and documented expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent)both Indemnitors, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether (it being understood that if Parent requests that the Indemnitors are obligated consent to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such a settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify compromise, the Indemnitors under this Section 4 for shall not unreasonably withhold or delay such claim or Legal Proceedingconsent). Parent shall give the Stockholders’ Agent Indemnitors prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent Indemnitors shall not limit any of the obligations of the Indemnitors under Section 4 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will Indemnitors may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent Indemnitors may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party of (a) If any claim or Legal Proceeding Action by a third party arises after the date hereof for which the Indemnitors may have an indemnification obligation under this Agreement, then the Indemnitee shall notify the Indemnitors within a reasonable time after such claim or Action arises and is known to the Indemnitee, and shall give the Indemnitors a reasonable opportunity: (whether against i) to conduct any Merger Subproceedings or negotiations in connection therewith and necessary or appropriate to defend the Indemnitee; (ii) to take all other required steps or proceedings to settle or defend any such claim or Action; and (iii) to employ counsel to contest any such claim or Action in the name of the Indemnitee or otherwise.
(b) The expenses of all proceedings, the Company, Parent contests or any other Person) lawsuits with respect to which any Indemnitor may become obligated such claims or Actions shall be borne by the Indemnitors. If the Indemnitors wish to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the right, at its election, to proceed with assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory Action, then the Indemnitors shall give written notice to the Stockholders’ Agent. If Parent so proceeds with Indemnitee within thirty (30) days after notice from the Indemnitee of such claim or Action, and the Indemnitors shall thereafter assume the defense of any such claim or Legal Proceeding:
(a) subject liability, through counsel reasonably satisfactory to the other provisions Indemnitee; provided that the Indemnitee may participate in such defense at its own expense. The Indemnitee shall have the right to control the defense of Section 4, all reasonable expenses relating to the claim or Action unless and until the Indemnitors shall: (i) assume the defense of such claim or Legal Proceeding Action, and (ii) acknowledge in writing to the Indemnitee that the Indemnitors shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available obligated to Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by indemnify the Indemnitee in connection with such claim or Legal Proceeding or whether Action. Notwithstanding any other provision of this Agreement, the Indemnitors are obligated shall not agree to indemnify any settlement or other resolution of any claim or Action that includes any remedy other than the payment of monetary damages without the prior written consent of the Indemnitee.
(c) If the Indemnitors under this Section 4 for do not assume the defense of, or if after so assuming, fail to defend, any such claim or Legal Proceeding. If Action, then the Stockholders’ Agent consents to settle, adjust or compromise Indemnitee may defend against such claim or Legal ProceedingAction in such manner as the Indemnitee may deem appropriate (provided that the Indemnitor may participate in such defense at its own expense) provided that the Indemnitee may not settle such claim or Action without the Indemnitors' prior written consent, such settlementwhich will not be unreasonably withheld, adjustment or compromise and the Indemnitors shall be conclusive evidence of promptly reimburse the Indemnitee for the amount of Damages all expenses, legal and otherwise, reasonably and necessarily incurred by the Indemnitee in connection with the defense against and settlement of such claim or Legal Proceeding and Action. If no settlement of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against ParentAction is made, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except shall satisfy any judgment rendered with respect to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceedingin such Action, before the Stockholders’ Agent will proceed with Indemnitee is required to do so, and pay all expenses, legal or otherwise, reasonably incurred by the Indemnitee in the defense of such claim or Legal Proceeding with counsel reasonably satisfactory Action.
(d) If an Order is rendered against the Indemnitee in any Action covered by the indemnification hereunder, or any Lien in respect of such Order attaches to Parent; providedany of the assets of the Indemnitee, howeverthe Indemnitors shall immediately upon such entry or attachment pay any amount required by such Order in full, that or discharge such Lien unless, at the Stockholders’ Agent may not settleexpense and request of the Indemnitors, adjust an appeal is taken under which the execution of the Order or compromise satisfaction of the Lien is stayed. If and when a final Order is rendered in any such claim Action, the Indemnitors shall forthwith pay any amount required by such Order or Legal Proceeding without discharge such Lien before the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)Indemnitee is compelled to do so.
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Subof the Acquired Corporations, the Company, Parent against any Indemnitee or against any other Person) with respect to which any Indemnitor of the Selling Stockholders may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 49, Parent the Purchaser shall have the right, at its election, to proceed with designate the Agent to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to at the sole expense of the Selling Stockholders’ Agent. If Parent the Purchaser so proceeds with elects to designate the Agent to assume the defense of any such claim or Legal Proceeding:
(a) subject the Agent shall proceed to the other provisions of Section 4, all reasonable expenses relating to the defense of defend such claim or Legal Proceeding shall be borne and paid exclusively by in a diligent manner with counsel satisfactory to the IndemnitorsPurchaser;
(b) each Indemnitor the Purchaser shall make available to Parent the Agent any non-privileged documents and materials in his the possession or control of the Purchaser that may be necessary to the defense of such claim or Legal Proceeding; and;
(c) Parent the Agent shall keep the Purchaser informed of all material developments and events relating to such claim or Legal Proceeding;
(d) the Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary participate in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that Proceeding;
(e) the Stockholders’ Agent may shall not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent the Purchaser; and
(which consent f) the Purchaser may at any time (notwithstanding the prior designation of the Agent to assume the defense of such claim or Legal Proceeding) assume the defense of such claim or Legal Proceeding. If the Purchaser does not be unreasonably withheld elect to designate the Agent to assume the defense of any such claim or delayedLegal Proceeding (or if, after initially designating the Agent to assume such defense, the Purchaser elects to assume such defense)., the Purchaser may proceed with the defense of such claim or Legal Proceeding on its own. If the Purchaser so proceeds with the defense of any such claim or Legal Proceeding on its own:
(i) the Purchaser shall notify the Agent in writing that it is doing so and keep the Agent informed of all material developments and events relating to such claim or Legal Proceeding;
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Subthe Surviving Corporation, the Company, against Parent or against any other Person) with respect to which any Indemnitor Indemnitee may become obligated be entitled to hold be held harmless, indemnifyindemnified, compensate compensated or reimburse any Indemnitee reimbursed pursuant to this Section 410: (a) Parent shall notify the Stockholders’ Representative promptly after Parent receives written notice of such claim or Legal Proceeding (it being understood that any failure by Parent to so promptly notify the Stockholders’ Representative shall have no effect on an Indemnitee’s ability to recover Damages pursuant to this Section 10, except to the extent that the defense of such claim or Legal Proceeding is materially prejudiced thereby), and (b) Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory acceptable to the Stockholders’ AgentRepresentative. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
: (ai) subject to the other provisions of Section 4, all reasonable out-of-pocket expenses relating to the defense of such claim or Legal Proceeding shall shall, subject to Section 10.3, be borne and paid exclusively from the Escrow Fund, or, if such claim or Legal Proceeding relates to any matter referred to in Section 10.2(b) or Section 10.2(c), exclusively by the Indemnitors;
Key Stockholder or Key Stockholders obligated to hold harmless, indemnify, compensate and reimburse such Indemnitee; (bii) the Stockholders’ Representative and each Indemnitor Key Stockholder shall use commercially reasonable efforts to make available to Parent any documents and materials that Parent determines in his possession or control that good faith may be necessary to the defense of such claim or Legal Proceeding; and
and (ciii) Parent shall have the right to not settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the prior written consent of the Stockholders’ Agent Representative (it being understood that if Parent requests that the Stockholders’ Agent which consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim unreasonably withheld or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceedingdelayed). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with Representative shall (at the defense sole expense of the Effective Time Holders or, if such claim or Legal Proceeding with counsel reasonably satisfactory relates to Parent; providedany matter referred to in Section 10.2(b) or Section 10.2(c), however, that of the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).Key Stockholder
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against the Surviving Corporation, any Merger Sub, the Acquired Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 49, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agentown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of limitations contained in this Section 49, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and or other materials in his such Indemnitor’s possession or control or in the control of any of such Indemnitor’s Representatives that may be necessary or otherwise relevant to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the StockholdersSecurityholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent)Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether (it being understood that if Parent requests that the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the StockholdersSecurityholders’ Agent consents consent to settle, adjust or compromise such claim or Legal Proceeding, such a settlement, adjustment or compromise shall be conclusive evidence of compromise, the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the StockholdersSecurityholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent unreasonably withhold, condition or delay such failure materially prejudices the defense of such Legal Proceedingconsent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the StockholdersSecurityholders’ Agent will may proceed with the defense of such claim or Legal Proceeding at the expense of the Indemnitors with counsel reasonably satisfactory to Parent; provided, however, that the StockholdersSecurityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld withheld, conditioned or delayed). Parent shall give the Securityholders’ Agent prompt notice of the commencement of any Legal Proceeding against Parent, Merger Sub or the Company with respect to which Parent intends to demand indemnification from the Indemnitors; provided, however, that any failure on the part of Parent to so notify the Securityholders’ Agent shall not limit any of the obligations of the Indemnitors under this Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding Action (whether against any Merger Subthe Surviving Corporation, the Company, Parent Buyer or any other Person) with respect to which any Indemnitor the Indemnifying Parties may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee Indemnified Party pursuant to Section 4this Article IX, Parent Buyer shall have the right, at its election, to proceed with the defense of defend such claim or Legal Proceeding Action on its own with counsel reasonably satisfactory to the StockholdersSecurityholder Representative, and the Securityholder Representative shall be entitled, at the Indemnifying Parties’ Agent. If Parent so proceeds with expense, to participate in, but not determine or conduct, the defense of such claim or Action and Buyer shall keep the Securityholder Representative reasonably apprised of any material development in such Action, and promptly provide to the Securityholder Representative copies of all pleadings, notices and communications with respect to such claim or Action to the extent that receipt of such documents does not waive any privilege. In the event of any such claim or Legal ProceedingAction:
(a) subject to the other provisions of Section 4this Article IX, all reasonable expenses relating to the defense of such claim or Legal Proceeding Action (and all reasonable amounts due pursuant to any settlement, adjustment or compromise of such claim or Action) shall be borne and paid exclusively by the Indemnitors;Indemnifying Parties to the extent that either (i) it is determined according to the procedures in this Article IX that such claim or Action (or the matters underlying such claim or Action) constitutes an indemnifiable matter under Section 9.2 or (ii) Buyer and the Securityholder Representative otherwise agree in writing that such costs and expenses shall constitute indemnifiable Losses; provided, that the absence of a final determination (including by a Governmental Entity or an arbitrator) with respect to such claim or Action shall not prejudice or otherwise affect the determination as to whether such claim or Action arose out of, resulted from, or was in connection with a matter listed in Section 9.2; and
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent Buyer shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding Action without the consent of the Stockholders’ Agent Securityholder Representative (it being understood that if Parent Buyer requests that the Stockholders’ Agent Securityholder Representative consent to a settlement, adjustment or compromise, the Stockholders’ Agent Securityholder Representative shall not unreasonably withhold or delay such consent; provided, that the Securityholder Representative may withhold consent to any requested settlement, adjustment or compromise if the Securityholder Representative believes in good faith that there is not any underlying basis for indemnification under this Article IX with respect to such settlement, adjustment or compromise); provided, however, that if Buyer settles, adjusts or compromises any such claim or Action without the consent of the Securityholder Representative, then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages Losses incurred by the Indemnitee Indemnified Party in connection with such claim or Legal Proceeding Action or whether the Indemnitors that such Losses are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceedingindemnifiable hereunder. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent Buyer shall give the Stockholders’ Agent Securityholder Representative prompt written notice of the commencement of any such Legal Proceeding Action against ParentBuyer, any Merger Sub or the Company; provided, however, that any failure on the part of Parent Buyer to so notify the Stockholders’ Agent Securityholder Representative shall not limit any of the obligations of the Indemnitors Indemnifying Parties under Section 4 this Article IX (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayedAction).
Appears in 1 contract
Samples: Merger Agreement (F5 Networks, Inc.)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against MS, against any Merger Sub, the Company, Parent other Indemnitee or against any other Person) with respect to which any Indemnitor of the Selling Shareholders may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 46, Parent the Purchaser shall have the right, at its election, to designate the Agent to assume the defense of such claim or Proceeding at the sole expense of the Selling Shareholders. If the Purchaser so elects to designate the Agent to assume the defense of any such claim or Proceeding:
(a) the Agent shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the Purchaser;
(b) the Purchaser shall make available to the Agent any non-privileged documents and materials in the possession of the Purchaser that may be necessary to the defense of such claim or Proceeding;
(c) the Agent shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser, at its own expense, shall have the right to participate in the defense of such claim or Proceeding;
(e) the Agent shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld if the settlement includes a general release of MS and the Purchaser, involves no prohibition or restriction on the use of any asset of MS or Purchaser or the conduct of any business by MS or Purchaser and requires no payment from the Purchaser or MS); and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Agent to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Agent to assume the defense of any such claim or Proceeding (or if, after initially designating the Agent to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agentown. If Parent the Purchaser so proceeds with the defense of any such claim or Legal ProceedingProceeding on its own:
(ai) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the IndemnitorsSelling Shareholders;
(bii) each Indemnitor the Selling Shareholders shall make available to Parent the Purchaser any non-privileged documents and materials in his the possession or control of any of the Selling Shareholders that may be necessary to the defense of such claim or Legal Proceeding;
(iii) the Purchaser shall keep the Agent informed of all material developments and events relating to such claim or Proceeding;
(iv) the Agent, at its own expense, shall have the right to participate in the defense of such claim or proceeding; and
(cv) Parent the Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to Proceeding with the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the prior written consent of the Stockholders’ Agent (it being understood that if Parent requests Agent; PROVIDED, HOWEVER, that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate pay or reimburse any Indemnitee pursuant to Section 410, Parent the Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ AgentSelling Shareholders. If Parent the Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 410, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent the Purchaser any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent the Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to if the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent)Selling Shareholders, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether (it being understood that if the Indemnitors are obligated Purchaser requests that the Selling Shareholders consent to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such a settlement, adjustment or compromise compromise, the Selling Shareholders shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with not unreasonably withhold or delay such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceedingconsent). Parent The Purchaser shall give the Stockholders’ Agent Selling Shareholders prompt written notice of the commencement of any such Legal Proceeding against Parent, the Purchaser or any Merger Sub or of the CompanyAcquired Companies after the Closing Date; provided, however, that any failure on the part of Parent the Purchaser to so notify the Stockholders’ Agent Selling Shareholders shall not limit any of the obligations of the Indemnitors under Section 4 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent the Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will Selling Shareholders may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentthe Purchaser; provided, however, that the Stockholders’ Agent Selling Shareholders may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent the Purchaser (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Samples: Share Purchase Agreement (Applied Materials Inc /De)
Defense of Third Party Claims. In For a period of two years from the date of this Agreement, in the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against PeopleNet International Corporation, against any Merger Sub, the Company, Parent other Indemnitee or against any other Person) with respect to which any Indemnitor of the Significant Shareholders or ECG may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 4, Parent PeopleNet International Corporation shall have the right, at its election, to proceed with require the Significant Shareholders to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to at the Stockholders’ Agentsole expense of the Significant Shareholders and ECG. If Parent PeopleNet International Corporation so proceeds with elects to require the Significant Shareholders to assume the defense of any such claim or Legal Proceeding:
(a) subject the Significant Shareholders shall proceed to the other provisions of Section 4, all reasonable expenses relating to the defense of defend such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitorsin a diligent manner with counsel satisfactory to PeopleNet International Corporation;
(b) each Indemnitor PeopleNet International Corporation shall make available to Parent the Significant Shareholders any non-privileged documents and materials in his the possession or control of PeopleNet International Corporation that may be necessary to the defense of such claim or Legal Proceeding;
(c) the Significant Shareholders shall keep PeopleNet International Corporation informed of all material developments and events relating to such claim or Proceeding;
(d) PeopleNet International Corporation shall have the right to participate in the defense of such claim or Proceeding;
(e) the Significant Shareholders shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of PeopleNet International Corporation; and
(f) PeopleNet International Corporation may at any time (notwithstanding the prior designation of the Significant Shareholders to assume the defense of such claim or Proceeding) elect to assume the defense of such claim or Proceeding. If PeopleNet International Corporation does not require the Significant Shareholders to assume the defense of any such claim or Proceeding (or if, after initially requiring the Significant Shareholders to assume such defense, PeopleNet International Corporation elects to assume such defense), PeopleNet International Corporation may proceed with the defense of such claim or Proceeding on its own. If PeopleNet International Corporation so proceeds with the defense of any such claim or Proceeding on its own:
(i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by PeopleNet International Corporation) shall be borne and paid exclusively by the Significant Shareholders and ECG;
(ii) the Significant Shareholders and ECG shall make available to PeopleNet International Corporation any documents and materials in the possession or control of either of the Significant Shareholders or ECG that may be necessary to the defense of such claim or Proceeding;
(iii) PeopleNet International Corporation shall keep the Significant Shareholders informed of all material developments and events relating to such claim or Proceeding; and
(civ) Parent PeopleNet International Corporation shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)Significant Shareholders.
Appears in 1 contract
Samples: Sale of Assets Agreement (Peoplenet International Corp)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, Sub or the Company, against Parent or against any other Person) with respect to which any Indemnitor of the Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 49, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agentown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively from the Escrow Shares and/or pursuant to Parent's setoff rights set forth in Section 9.3 upon a final non-appealable order (or an order for which the appeal period has expired) or settlement agreement or agreement of any court of competent jurisdiction or arbitrators empanelled pursuant to any agreement contemplated by this Agreement or by agreement of Parent and the IndemnitorsCompany;
(b) each Indemnitor shall make available to Parent any documents and materials in his or its possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the Shareholders' Agent (as defined in Section 10.1); provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not be unreasonably withhold or delay withheld and such consent), such settlement, adjustment or compromise settlement shall not be conclusive evidence of the amount of Damages incurred as to whether there has been a breach or violation by the Indemnitee Company of any representation or warranty, covenant or any other provision contained in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated this Agreement which would give rise to indemnify the Indemnitors an indemnification obligation under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding9. Parent shall give the Stockholders’ Shareholders' Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Shareholders' Agent shall not limit any of the obligations of the Indemnitors under this Section 4 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Shareholders' Agent will may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Shareholders' Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld withheld). Notwithstanding anything to the contrary contained in this Agreement, no indemnification payment need be made under this Agreement with respect to a claim or delayed)Legal Proceeding asserted or commenced by a third party against any Indemnitee until (i) a final non-appealable order (or an order for which the appeal period has expired) of any court of competent jurisdiction is rendered, (ii) a final arbitration award by arbitrators empanelled pursuant to any agreement contemplated by this Agreement is rendered, (iii) a settlement agreement is entered, or (iv) an agreement by Parent and the Company is reached. With respect to a claim by any Indemnitee for indemnification in situations other than those described in the preceding sentence, the procedures set forth in the Escrow Agreement and the Setoff Escrow Agreement shall govern.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Acuson Corp)
Defense of Third Party Claims. In If any lawsuit or enforcement action is filed against any indemnified Person, written notice thereof shall be given to the indemnifying Person(s) as promptly as practicable (and in any event within 15 calendar days after the service of the assertion citation or commencement by any third party summons). The failure of any claim or Legal Proceeding (whether against any Merger Subindemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory except to the Stockholders’ Agentextent that the indemnified Person(s) demonstrate that the indemnifying Person(s) were not prejudiced by such failure. If Parent so proceeds with After such notice, if the defense of any such claim or Legal Proceeding:
(aindemnifying Person(s) subject shall acknowledge in writing to the other provisions of Section 4, all reasonable expenses relating to indemnified Person that the defense of such claim or Legal Proceeding indemnifying Person(s) shall be borne and paid exclusively by obligated under the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense terms of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee its indemnity hereunder in connection with such claim lawsuit or Legal Proceeding action, then the indemnifying Person(s) shall be entitled, if its so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or whether action, (ii) to employ and engage attorneys of their own choice to handle and defend the Indemnitors same unless the named parties to such action or proceeding include both an indemnifying Person and the indemnified Person and the indemnified Person has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified Person that are obligated different from or additional to indemnify those available to the Indemnitors under this Section 4 for indemnifying Person(s), in which event the indemnified Person shall be entitled, at the indemnifying Person(s)'s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim claim, which compromise or Legal Proceeding. If settlement shall be made only with the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceedingwritten consent of the indemnified Person, such settlementconsent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the indemnifying Person(s) and its attorneys in the investigation, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding trial and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of lawsuit or action and any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentappeal arising therefrom; provided, however, that the Stockholders’ Agent may not settleindemnified Person may, adjust at its own cost, participate in the investigation, trial and defense of such lawsuit or compromise action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. If the indemnifying Person fails to assume the defense of such claim within 15 calendar days after receipt of the notice of claim, the indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying Person) have the right to undertake, at the indemnifying Person's cost, risk and expense, the defense, compromise or Legal Proceeding settlement of such claim on behalf of and for the account and risk of the indemnifying Person; provided, however, that such claim shall not be compromised or settled without the prior written consent of Parent (the indemnifying Person, which consent may shall not be unreasonably withheld withheld. If the indemnified Person assumes the defense of the claim, the indemnified Person will keep the indemnifying Person reasonably informed of the progress of any such defense, compromise or delayedsettlement. The indemnifying Person shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 10.2 and for any final judgment (subject to any right of appeal), and the indemnifying Persons agree to indemnify and hold harmless an indemnified Person from and against any Damages by reason of such settlement or judgment.
Appears in 1 contract
Samples: Stock Purchase Agreement (Icoa Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding;
(c) Parent shall not settle, adjust or compromise such claim or Legal Proceeding without the consent of the Stockholders’ Agent, such consent not to be unreasonably withheld, delayed or conditioned; and
(cd) notwithstanding Section 4.5(c), with respect to any claim or Legal Proceeding relating to Section 4.2(a)(iii), Intellectual Property or Intellectual Property Rights or any customers or suppliers of the Company or any of its Subsidiaries, Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding in its sole discretion, with or without the consent of the Stockholders’ Agent; providedprovided that (i) Parent shall consult with the Stockholders’ Agent with respect to any such settlement, however, that notwithstanding anything to the contrary in Section 4.2(a)(ixadjustment or compromise; and (ii) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and no Indemnitor shall be deemed to have agreed that the settlement, adjustment or compromise constitutes Damages for which an Indemnitee is entitled to indemnification (it being understood that that: (A) if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent); and (B) if Parent pursues a claim against the Indemnitors with respect to any matter for which Parent enters into a settlement, adjustment or compromise without the consent of the Stockholders’ Agent and such claim is submitted to arbitration under the Escrow Agreement, both the Stockholders’ Agent and Parent shall be entitled to provide to the arbitrator, and the arbitrator shall take into account, evidence with respect to why the amount of the settlement, adjustment or compromise should not (or should) have a bearing on the amount of Damages to which the Indemnitees are entitled. Such evidence may include, without limitation, evidence with respect to the Stockholders’ Agent’s views as to why Parent entered into such settlement, adjustment or compromise shall not be conclusive evidence (e.g., to avoid a dispute with a major customer of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal ProceedingParent)). Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Samples: Merger Agreement (Oclaro, Inc.)
Defense of Third Party Claims. In Promptly after the event receipt by an Indemnified Person of the assertion or commencement by any third party notice of any claim or Legal Proceeding (whether against of any Merger Subthird party, that is subject to indemnification hereunder, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent Indemnified Person shall have the right, at its election, to proceed with the defense give written notice of such claim or Legal Proceeding on its own with counsel reasonably satisfactory (a "Notice of Claim") to the Stockholders’ Agent. If Parent so proceeds indemnifying party in accordance with Section 9.1, stating the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 4, all reasonable expenses relating to the defense nature and basis of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents and materials in his possession or control that may be necessary amount thereof, to the defense of such claim or Legal Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceedingextent known; provided, however, that notwithstanding anything failure of an Indemnified Person to give such notice promptly shall not relieve the indemnifying party from any liability which it may have on account of this indemnification or otherwise, except to the contrary extent that the indemnifying party is materially prejudiced thereby. The indemnifying party shall be entitled to participate in Section 4.2(a)(ix) the defense or Section 4.5, if Parent settles, adjusts or compromises settlement of such matter and the parties agree to cooperate in any such claim defense or Legal Proceeding without settlement and to give each other full access to all information relevant thereto and the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise indemnifying party shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 Indemnified Person hereunder for such claim any settlement entered into without the indemnifying party's prior written consent, which consent shall not be unreasonably withheld, conditioned, or Legal Proceedingdelayed. If the Stockholders’ Agent consents any Notice of Claim relates to settlea claim by a Person or Persons other than AOGI, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of and the amount of Damages incurred such claim is fully covered by the Indemnitee in connection with foregoing indemnity, as limited herein, the Tower Shareholders may elect to defend against such claim or Legal Proceeding and at their expense, in lieu of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for AOGI assuming such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Companydefense; provided, however, that any failure on AOGI shall be entitled to participate in or monitor such defense at its expense and the part of Parent to so notify Tower Shareholders will fully cooperate with AOGI and its counsel with respect thereto and the Stockholders’ Agent Tower Shareholders shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of settle any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding claims without the prior written consent of Parent (AOGI, which consent may shall not unreasonably be unreasonably withheld withheld, conditioned, or delayed). The parties shall act in good faith in responding to, defending against, settling or otherwise dealing with such claims.
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Subeither Surviving Corporation, the either Company, Parent or any other Person) with respect to which any Indemnitor may become obligated Indemnitee has a right to hold harmless, indemnify, compensate or reimburse any Indemnitee indemnification pursuant to Section 4this Article X, Parent Company Stockholder shall have the right, at its his election, to proceed with the defense of such claim or Legal Proceeding on its his own with counsel reasonably satisfactory to the Stockholders’ AgentParent. The parties agree that, without limiting Company Stockholder’s choice of counsel, it shall be reasonable for Company Stockholder to use counsel that he has used in the past. The Parent shall have the right to participate in the defense of the claim at its own expense (on behalf of the Indemnifying Parties). If Parent Company Stockholder so proceeds with the defense of any such claim or Legal Proceeding:
(a) Company Stockholder shall keep the Parent reasonably informed as to the status of and all material developments in the defense;
(b) subject to the other provisions of Section 4Article X, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the IndemnitorsIndemnifying Parties and not made subject to the Deductible;
(bc) each Indemnitor Indemnitee shall make available to Parent Company Stockholder any documents and materials in his such Indemnitee Party’s possession or control that may be necessary to the defense of such claim or Legal Proceeding, all as reasonably determined by Parent; and
(cd) Parent Company Stockholder shall not have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent Parent, (it being understood that if Parent requests that the Stockholders’ Agent which consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim unreasonably withheld or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. delayed).
(e) If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent Company Stockholder does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will Parent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentCompany Stockholder; provided, however, that the Stockholders’ Agent Parent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent Company Stockholder (which consent may not be unreasonably withheld or delayed). Parent shall give Company Stockholder prompt notice of the commencement of any such Legal Proceeding against Parent, either Merger Sub or either Company; provided, however, that any failure on the part of Parent to so notify the Company Stockholder shall not limit any of the indemnification obligations set forth in Article X (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent against any other Selling Shareholders or against any other Person) with respect to which any Indemnitor of the Indemnitors may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this Section 4, Parent the Purchaser shall have the right, at its election, to proceed with designate the Agent to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to at the Stockholders’ Agentsole expense of the Selling Shareholders. If Parent the Purchaser so proceeds with elects to designate the Agent to assume the defense of any such claim or Legal Proceeding:
(a) subject the Agent shall proceed to the other provisions of Section 4, all reasonable expenses relating to the defense of defend such claim or Legal Proceeding shall be borne and paid exclusively by in a diligent manner with counsel satisfactory to the IndemnitorsPurchaser;
(b) each Indemnitor the Purchaser shall make available to Parent the Agent any non-privileged documents and materials in his the possession or control of the Purchaser that may be necessary to the defense of such claim or Legal Proceeding;
(c) the Agent shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Agent shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(cf) Parent the Purchaser may at any time (notwithstanding the prior designation of the Agent to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Agent to assume the defense of any such claim or Proceeding (or if, after initially designating the Agent to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such claim or Proceeding on its own: (i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Selling Shareholders; (ii) the Selling Shareholders shall make available to the Purchaser any documents and materials in the possession or control of any of the Selling Shareholders that may be necessary to the defense of such claim or Proceeding; (iii) the Purchaser shall keep the Agent informed of all material developments and events relating to such claim or Proceeding; and (iv) the Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without with the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentAgent; provided, however, that the Stockholders’ Agent may shall not settle, adjust or compromise any unreasonably withhold such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)consent.
Appears in 1 contract
Samples: Plan of Reorganization and Stock Purchase Agreement (Nichols Robert D)
Defense of Third Party Claims. In (a) The indemnifying party under this Article VI (in the event case of the assertion or commencement by any third party of any claim or Legal Proceeding (whether against any Merger SubShareholders, through the Company, Parent or any other PersonShareholders Representative) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the rightright to conduct and control, through counsel of its own choosing reasonably acceptable to the indemnified party, the defense of any third-party claim, action, or suit or compromise or settlement or payment thereof. If the indemnifying party assumes the defense, the indemnified party may, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agent. If Parent so proceeds with participate in the defense of any such claim claim, action, or Legal Proceeding:
(a) subject to suit through counsel of its choosing, but the other provisions of Section 4, all reasonable fees and expenses relating to the defense of such claim or Legal Proceeding counsel shall be borne at the expense of the indemnified party. If the indemnifying party shall fail to defend diligently any such third-party action, claim, or suit, then the indemnified party may defend, through counsel of its own choosing, such action, claim, or suit and paid exclusively may settle such action, claim, or suit and recover from the indemnifying party all Losses associated therewith including the amount of such settlement or of any judgment and the reasonable costs and expenses of such defense. The indemnifying party shall not compromise or settle any third-party action, claim, or suit on terms that shall require any act or forbearance by the Indemnitors;
(b) each Indemnitor shall make available to Parent any documents indemnified party or that do not include a full and materials complete release of the indemnified party from all liability in his possession or control that may be necessary to the defense respect of such claim claim, action, or Legal Proceeding; and
(c) Parent suit without the prior written consent of the indemnified party, which shall have the not be unreasonably withheld. Assumption by an indemnifying party of control of any such defense, compromise, or settlement shall not be deemed a waiver by it of its right to settle, adjust or compromise such claim or Legal Proceedingchallenge its obligation to indemnify the indemnified party; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromiseevent, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise indemnifying party shall not be conclusive evidence of entitled to reimbursement from the amount of Damages indemnified party for the costs incurred by the Indemnitee in undertaking such defense. The Buyer, Surviving Corporation, and Shareholders Representative shall cooperate in all reasonable respects with each other in connection with such claim the defense, negotiation, or Legal Proceeding settlement of any legal proceeding, claim, or whether demand referred to in this Section 4.4 and shall provide all reasonably necessary access to records and personnel.
(b) In accordance with the Indemnitors are foregoing provisions, the Shareholders shall retain liability for the litigation arising out of the Designated Claim and, as parties obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence Buyer in respect of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parentsame, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices undertake the defense of such Legal Proceeding)litigation, all in accordance with the foregoing provisions and subject to the limitations and provisions of this Article IV. If Parent does not elect The defense of the Designated Claim shall be accomplished in the sole direction and under the sole control of the Shareholders Representative and toward that end, the Company shall provide to proceed the Shareholders Representative access to Company personnel and records and shall generally cooperate with the Shareholders Representative.
(c) The obligations of the parties with respect to the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not Special Indemnity Claim shall be unreasonably withheld or delayedas described in Schedule 4.1(e).
Appears in 1 contract
Samples: Merger Agreement (Quanex Corp)
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against the Purchaser, against any Merger Sub, the Company, Parent other Indemnitee or against any other Person) with respect to which any Indemnitor Hardy may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4this Article 9, Parent the Purchaser shall have the right, at its election, to designate Hardy to assume the defense of such claim or Proceeding at the sole expense of Hardy. If the Purchaser so elects to designate Hardy to assume the defense of any such claim or Proceeding:
(a) Hardy shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the Purchaser;
(b) the Purchaser shall make available to Hardy any non-privileged documents and materials in the possession of the Purchaser that may be necessary to the defense of such claim or Proceeding;
(c) Hardy shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) Hardy shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time (notwithstanding the prior designation of Hardy to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate Hardy to assume the defense of any such claim or Proceeding (or if, after initially designating Hardy to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agentown. If Parent the Purchaser so proceeds with the defense of any such claim or Legal ProceedingProceeding on its own:
(ai) subject to the other provisions of Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the IndemnitorsHardy;
(bii) each Indemnitor Hardy shall make available to Parent the Purchaser any documents and materials in his the possession or control of either of Hardy that may be necessary to the defense of such claim or Legal Proceeding;
(iii) the Purchaser shall keep Hardy informed of all material developments and events relating to such claim or Proceeding; and
(civ) Parent the Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without with the consent of the Stockholders’ Agent (it being understood Hardy; PROVIDED, HOWEVER, that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent Hardy shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any third party of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to Section 4, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) If a THIRD PARTY asserts that a patent or other right owned by it is infringed by (i) the manufacture of any BULK DRUG SUBSTANCE or BULK DRUG TABLETS by VIVUS, its SUBLICENSEES or its contractors, or (ii) the development, manufacture, use or sale of any PRODUCT by VIVUS, its SUBLICENSEES or its contractors, VIVUS shall be solely responsible for defending against, or at its option settling, any such assertions at its cost and expense (so long as VIVUS has the right to sell such PRODUCT hereunder), excluding any claims subject to MTPC’s defense obligations under the other provisions of following Section 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;15.5(b).
(b) each Indemnitor If a THIRD PARTY asserts that a patent or other right owned by it is infringed by (i) the manufacture of any BULK DRUG SUBSTANCE or BULK DRUG TABLETS by MTPC, its licensees or its contractors, or (ii) the development, manufacture, use or sale of any PRODUCT by MTPC, its licensees or its contractors, then MTPC shall make available be solely responsible for defending against, or at its option settling, any such assertions at its cost and expense, excluding any claims subject to Parent any documents and materials in his possession or control that may be necessary to VIVUS’s defense obligations under the defense of such claim or Legal Proceeding; andforegoing Section 15.5(a).
(c) Parent shall have the right With respect to settle, adjust or compromise such any claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromiseinfringement alleged under this Section, the Stockholders’ Agent Parties shall not unreasonably withhold meet and discuss the appropriate action to take to address such claim, including without limitation (i) replacing or delay modifying the allegedly infringing PRODUCT, BULK DRUG SUBSTANCE or COMPOUND or parts thereof, with other suitable and reasonably equivalent technology or parts so that they become non-infringing (ii) defending such consent)action, or (iii) settling such action, including obtaining a license from a THIRD PARTY to manufacture, use or sell, as appropriate, such settlementPRODUCT, adjustment BULK DRUG SUBSTANCE, or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)COMPOUND.”
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Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger Sub, the Company, Parent or any other Person) with respect to which any Indemnitor may become obligated to hold harmless, indemnify, compensate pay or reimburse any Indemnitee pursuant to Section 410, Parent the Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ AgentSelling Shareholders. If Parent the Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 410, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors;
(b) each Indemnitor shall make available to Parent the Purchaser any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding; andand 41
(c) Parent the Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to if the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent)Selling Shareholders, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether (it being understood that if the Indemnitors are obligated Purchaser requests that the Selling Shareholders consent to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such a settlement, adjustment or compromise compromise, the Selling Shareholders shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with not unreasonably withhold or delay such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceedingconsent). Parent The Purchaser shall give the Stockholders’ Agent Selling Shareholders prompt written notice of the commencement of any such Legal Proceeding against Parent, the Purchaser or any Merger Sub or of the CompanyAcquired Companies after the Closing Date; provided, however, that any failure on the part of Parent the Purchaser to so notify the Stockholders’ Agent Selling Shareholders shall not limit any of the obligations of the Indemnitors under Section 4 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent the Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will Selling Shareholders may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentthe Purchaser; provided, however, that the Stockholders’ Agent Selling Shareholders may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent the Purchaser (which consent may not be unreasonably withheld or delayed).
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Samples: Share Purchase Agreement
Defense of Third Party Claims. In the event of the assertion or commencement by any third party Person of any claim or Legal Proceeding (whether against any Merger SubBuyer, the Company, Parent the Company Subsidiary or any other Person) with respect to which any Indemnitor the Company or the Company Subsidiary may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee Buyer pursuant to Section 48, Parent Buyer shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Stockholders’ AgentCompany. If Parent Buyer so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of Section 48, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the IndemnitorsSeller;
(b) each Indemnitor the Seller shall make available to Parent Buyer any documents and materials in his its possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(c) Parent Buyer shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent Buyer settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent)Company, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee Buyer in connection with such claim or Legal Proceeding or whether (it being understood that if Buyer requests that the Indemnitors are obligated Company consent to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such a settlement, adjustment or compromise compromise, the Company shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with not unreasonably withhold or delay such claim or Legal Proceeding and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent consent).
(d) Buyer shall give the Stockholders’ Agent Company prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub Buyer or the Company; Seller, provided, however, that any failure on the part of Parent Buyer to so notify the Stockholders’ Agent Company shall not limit any of the obligations of the Indemnitors Seller under Section 4 8 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent Buyer does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent will Seller may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentBuyer; provided, however, that the Stockholders’ Agent Seller may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).adjust
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