Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then have the right to defend, contest, negotiate or settle any such claim or demand through counsel of his or its own selection (who shall be reasonably acceptable to the Indemnified Party), at the Indemnifying Party’s own cost and expense, and the Indemnified Party shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentence, the Indemnifying Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party gives notice to the Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writing, that the Indemnifying Party elects to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and the Indemnifying Party shall cooperate with and assist the Indemnified Party in the defense of such claim or demand, provided, however, that the Indemnified Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent (which may include a general or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bionik Laboratories Corp.)
Defense of Third Person Claims. With respect If an Injured Party is entitled to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder because of a claim asserted by any claimant (the party seeking indemnification being referred to herein as the other than an Injured Party hereunder) (a “Indemnified PartyThird Person”), whenever the Indemnified Injured Party will have received shall give a written notice that Notice of Claim to the Indemnifying Party promptly after such a claim or demand has been asserted or threatened, assertion is actually known to the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Injured Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have the right right, upon written notice to defendthe Injured Party, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, negotiate or settle any the claim alleged by such claim or demand through counsel Third Person (a “Third Person Claim”), provided that (i) the Indemnifying Party notified the Injured Party in writing, within thirty (30) days after the Injured Party has given notice of his or its own selection the Third Person Claim, of the Indemnifying Party’s election to indemnify the Injured Party with respect to such Third Person Claim and to assume the defense of such Third Person Claim, (who shall be ii) the Indemnifying Party provides the Injured Party with evidence reasonably acceptable to the Indemnified Party), at Injured Party of its financial capacity to defend such Third Person Claim and fulfill its indemnification with respect to such Third Person Claim; (iii) the Indemnifying Party’s own cost and expense, and Third Person Claim involves only money damages that are not in excess of one hundred percent (100%) of the Indemnified Party shall cooperate with and assist amount for which the Indemnifying Party may be liable under this Agreement and the Third Person Claim does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Person Claim is not, in the good faith judgment of the Injured Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Injured Party, and (v) the Indemnifying Party conducts the defense of such claim or demand. Notwithstanding the preceding sentence, Third Person Claim actively and diligently; and provided further that the Indemnifying Party will not settle, compromise, consent to the entry of any judgment with respect to the matter or offer enter into any settlement with respect to settle or compromise any such claim or demand the matter without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed. If the Indemnifying Injured Party gives notice to the Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writing, except that the Indemnifying Party elects shall be entitled to have consent to any judgment and/or enter into any settlement without the Indemnified consent of the Injured Party defendif such judgment or settlement requires only the payment of money, contestdoes not constitute an admission of any wrongdoing or a waiver of any rights of the Injured Party, negotiatein the good faith judgment of the Injured Party, is not likely to establish a precedential custom or settle any such claim or demandpractice adverse to the continuing business interests of the Injured Party, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and the Indemnifying Party is solely liable for the entire settlement amount. For the avoidance of doubt, a claim or challenge asserted by a Governmental or Licensing Authority, including the IRS or the U.S. Department of Commerce, against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless (A) there is a reasonable likelihood that a conflict of interest or potential conflict of interest exists between the Indemnifying Party and the Injured Party, (B) there are legal defenses available to the Injured Party that are different from or additional to those available to the Indemnifying Party, or (C) the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control the defense of the Third Person Claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate, and such representation shall be at the expense of the Indemnifying Party, provided that the Injured Party shall not choose any counsel who is objectionable to the Indemnifying Party’s insurance company, if such company has agreed to provide coverage for such third party claim. The failure of the Indemnifying Party to respond in writing to the Notice of Claim within thirty (30) days after receipt thereof shall be deemed an election not to defend the same. The Parties shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate with and assist the Indemnified Party in the defense of such claim or demandthereof, provided, however, that the Indemnified Party will not settle, compromise, any confidential or offer to settle or compromise any such claim or demand without the prior written consent (which may include a general or limited consent) of the Indemnifying Party, which consent privileged materials will not be unreasonably withhelddisclosed by the Injured Party other than as needed for such defense, conditioned or delayed. In and the event that Indemnifying Party agrees to enter into a commercially reasonable confidentiality and non-use agreement with the Stockholders’ Representative has consented Injured Party with respect to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlementinformation.
Appears in 1 contract
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”a) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have 30 calendar days (or, to the right extent possible, such shorter period as may be sufficient under the circumstances to defendgive the Indemnifying Party a reasonable opportunity to respond) after receipt of the Litigation Notice to notify the Claimant that it elects to undertake, contest, negotiate or settle any such claim or demand conduct and assume control (through counsel of his or its own selection (who shall be Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an identifiable claim (the Indemnified Party“Election Notice”); provided¸ that, at as a condition precedent to the Indemnifying Party’s own cost and expense, and the Indemnified Party shall cooperate with and assist the Indemnifying Party in the defense right to assume control of such claim or demand. Notwithstanding the preceding sentencedefense, the Indemnifying Party will not settle, compromise, or offer must (A) first demonstrate to settle or compromise any such claim or demand without the prior written consent Claimant in writing (1) reasonable evidence of the Indemnified Indemnifying Party’s financial ability to provide indemnification to the extent provided hereunder to the Claimant with respect to such third party claim and (2) after giving effect to the application of the limitations in this Article 9, which consent will not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party gives notice would be responsible for a greater portion of the Losses related to such third party claim than the Claimant, and (B) agree to provide indemnification to the Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writingextent provided hereunder; provided, further, that the Indemnifying Party elects to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will shall not have the right to contest and/or settle assume control of such defense and shall pay the fees and expenses of counsel retained by the Claimant (to the extent required herein), if (1) the third party claim seeks an injunction or equitable relief, or relief for other than money damages against the Claimant that the Claimant reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, (2) the third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its Affiliates or any of their respective Personnel, (3) the parties to any such third party claim or demand threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and the Indemnifying Party shall cooperate with have been advised in writing by counsel for the Claimant that there exists legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Party and assist the Indemnified Claimant, (4) the Indemnifying Party in the defense of failed or is failing to diligently prosecute or defend such claim or demand, provided, however, that the Indemnified Party will not settle, compromisethird party claim, or offer (5) the third party claim relates to settle or compromise arises in connection with any such claim environmental, health or demand without the prior written consent (which may include a general safety conditions or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayedmatters. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlement.49
Appears in 1 contract
Samples: Share Exchange Agreement (GBS Inc.)
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the "Election Notice"). If the Indemnifying Party gives a Disagreement Notice or does not give the foregoing Election Notice during such twenty (20) calendar day period, the Claimant shall have the right to defend, contest, negotiate settle or settle any compromise such claim action or demand suit in the exercise of its sole discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party gives the foregoing Election Notice and provides information satisfactory to the Claimant in its sole discretion confirming the Indemnifying Party's financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel of his or its own selection (who shall be reasonably acceptable satisfactory to the Indemnified Party), Claimant and at the Indemnifying Party’s own cost 's sole expense, the conduct and expensesettlement of such Proceeding, and the Indemnified Party Claimant shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentenceconnection therewith; provided, however, that (a) the Indemnifying Party will shall not settle, compromise, or offer thereby consent to settle or compromise the imposition of any such claim or demand injunction against the Claimant without the prior written consent of the Indemnified PartyClaimant, which consent will not be unreasonably withheld, conditioned or delayed. If (b) the Indemnifying Party gives notice shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Indemnified Party within twenty Business Days after Claimant, but the Indemnified Party has notified fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (c) below, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that any the Claimant incurred after the assumption of the conduct and control of such claim or demand has been made in writing, that Proceeding by the Indemnifying Party elects to in good faith and (d) the Claimant shall have the Indemnified Party defend, contest, negotiate, right to pay or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and the Indemnifying Party shall cooperate with and assist the Indemnified Party in the defense of such claim or demand, provided, however, that the Indemnified Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent (which may include a general or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlementProceeding.
Appears in 1 contract
Samples: Asset Purchase Agreement (Geospatial Holdings, Inc.)
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, negotiate settle or settle any compromise such claim or demand Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel of his or its own selection (who shall be reasonably acceptable satisfactory to the Indemnified Party)Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s own cost sole expense, the conduct and expensesettlement of such Proceeding, and the Indemnified Party Claimant shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentenceconnection therewith; provided, however, that (a) the Indemnifying Party will shall not settle, compromise, or offer thereby consent to settle or compromise the imposition of any such claim or demand injunction against the Claimant without the prior written consent of the Indemnified Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which consent will not be unreasonably withheld, conditioned or delayed. If delayed or, if such settlement provides for release of the Indemnifying Party gives notice Claimant in connection with all matters relating to the Indemnified Party within twenty Business Days after Proceeding which have been asserted against the Indemnified Party has notified Claimant in such Proceeding by the Indemnifying Party that any other parties to such claim or demand has been made in writingsettlement, that without the Indemnifying Party elects consent of the Claimant. Notwithstanding anything herein to have the Indemnified Party defendcontrary, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and the Indemnifying Party shall cooperate with and assist the Indemnified Party in not be entitled to assume or maintain control of the defense of such claim or demandany Proceeding, provided, however, that the Indemnified Party will shall not settle, compromise, or offer be entitled to settle or compromise any such claim Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or demand without arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the prior written consent Proceeding seeks injunctive or equitable relief against the Claimant, or (which may include a general or limited consentc) of the Indemnifying Party, which consent will Party has not be unreasonably withheld, conditioned elected to defend or delayed. In is failing to defend in good faith the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlementProceeding.
Appears in 1 contract
Defense of Third Person Claims. With respect (i) The Indemnifying Party shall have the right after receipt of the Litigation Notice to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ RepresentativeClaimant that it elects to undertake, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 conduct and assume control (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then have the right to defend, contest, negotiate or settle any such claim or demand through counsel of his or its own selection (who shall be Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an identifiable claim (the Indemnified Party“Election Notice”); provided, at that as a condition precedent to the Indemnifying Party’s own cost and expense, and the Indemnified Party shall cooperate with and assist the Indemnifying Party in the defense right to assume control of such claim or demand. Notwithstanding the preceding sentencedefense, the Indemnifying Party will not settle, compromise, or offer must first demonstrate to settle or compromise any such claim or demand without the prior written consent Claimant in writing reasonable evidence of the Indemnified Indemnifying Party’s financial ability to assume control of such defense of such third party claim; provided, which consent will not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party gives notice to the Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writingfurther, that the Indemnifying Party elects to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will shall not have the right to contest and/or settle assume control of such defense and shall pay the fees and expenses of counsel retained by the Claimant (to the extent required herein), if (1) the third party claim seeks an injunction or equitable relief, or relief for other than money damages against the Claimant that the Claimant reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, (2) the third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its affiliates or any of their respective Personnel, (3) the parties to any such third party claim or demand threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and the Indemnifying Party shall cooperate with have been advised in writing by counsel for the Claimant that there exists legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Party and assist the Indemnified Claimant, (4) the Indemnifying Party in the defense of failed or is failing to use Reasonable Efforts to diligently prosecute or defend such claim or demand, provided, however, that the Indemnified Party will not settle, compromisethird party claim, or offer (5) the R&W Insurer has exercised a right to settle or compromise any such defend the third party claim or demand without under the prior written consent (which may include a general or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlementR&W Policy.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kimball International Inc)
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the The indemnifying party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have the right to conduct and control, through counsel of its own choosing, reasonably acceptable to the indemnified party, any third Person legal action or other claim, but the indemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that if the indemnifying party shall fail to defend any such legal action or other claim, then the indemnified party may defend, contestthrough counsel of its own choosing, negotiate such legal action or other claim, and (so long as it gives the indemnifying party at least twenty (20) days’ notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the defense thereof) settle such legal action or other claim and to recover 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 such legal action or other claim or demand through counsel of his or its own selection (who shall be reasonably acceptable to the Indemnified Party), at the Indemnifying Party’s own cost and expense, and the Indemnified Party shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentence, the Indemnifying Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent of the indemnified party, which consent shall not unreasonably be withheld, delayed or conditioned if the terms and conditions of such compromise or settlement proposed by the indemnifying party and agreed to in writing by the claimant in such legal action or other claim (the “Settlement Proposal”) (a) include a full release of the indemnified party from the legal action or other claim which is the subject of the Settlement Proposal, and (b) if the indemnified party is a Buyer Indemnified Party, do not include any term or condition which consent will not be unreasonably withheldwould restrict in any material manner the continued ownership or operations of the Subject Assets or the conduct of the Business in substantially the manner then being owned, conditioned operated and conducted by Buyer (or delayedany successor or assign). If No matter whether an indemnifying party defends or prosecutes any third Person legal action or claim, the Indemnifying Party gives notice to the Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writing, that the Indemnifying Party elects to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand indemnified and the Indemnifying Party indemnifying parties shall cooperate with and assist the Indemnified Party in the defense of such claim or demand, provided, however, that the Indemnified Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent (which may prosecution thereof. Such cooperation shall include a general or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement access during normal business hours afforded to the amount indemnifying party to, and reasonable retention by the indemnified party of, records and information which are reasonably relevant to such third Person legal action or claim, and making employees available on a mutually convenient basis to provide additional information and explanation of such settlementany material provided hereunder, and the indemnifying party shall reimburse the indemnified party for all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Defense of Third Person Claims. With If an indemnifying party receives a notice given in accordance with Section 9.3 with respect to any claims a third Person legal action or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatenedclaim, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then indemnifying party shall have the right to conduct and control, through counsel of its own choosing, reasonably acceptable to the indemnified party, such third Person legal action or other claim, but the indemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that if the indemnifying party shall fail to defend any such legal action or other claim, then the indemnified party may defend, contestthrough counsel of its own choosing, negotiate such legal action or other claim, and (so long as it gives the indemnifying party at least fifteen (15) days' notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the defense thereof) settle such legal action or other claim and to recover 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 such legal action or other claim or demand through counsel of his or its own selection (who shall be reasonably acceptable to the Indemnified Party), at the Indemnifying Party’s own cost and expense, and the Indemnified Party shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentence, the Indemnifying Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent of the Indemnified Partyindemnified party, which consent will shall not unreasonably be unreasonably withheld, conditioned delayed or delayed. If the Indemnifying Party gives notice to the Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writing, that the Indemnifying Party elects to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and the Indemnifying Party shall cooperate with and assist the Indemnified Party in the defense of such claim or demand, conditioned; provided, however, that consent shall not be required if the Indemnified Party will not settle, compromise, terms and conditions of such compromise or offer settlement proposed by the indemnifying party and agreed to settle in writing by the claimant in such legal action or compromise any such other claim or demand without (the prior written consent "Settlement Proposal") (which may a) include a general or limited consent) full release of the Indemnifying indemnified party from the legal action or other claim which is the subject of the Settlement Proposal, (b) do not impose on the indemnified party any obligation or materially increase the indemnified party's risk of further proceedings, and (c) if the indemnified party is a Buyer Indemnified Party, do not include any term or condition which consent will not be unreasonably withheld, conditioned would restrict in any material manner the continued ownership or delayedoperations of the Subject Assets or the conduct of the Business as conducted by Seller prior to the Closing. In the event that the Stockholders’ Representative has consented to No matter whether an indemnifying party defends or prosecutes any settlementthird Person legal action or claim, the Stockholders indemnified and indemnifying parties shall have no power cooperate in the defense or authority to object under any provision of this Agreement prosecution thereof. Such cooperation shall include access during normal business hours afforded to the amount indemnifying party to, and reasonable retention by the indemnified party of, records and information which are reasonably relevant to such third Person legal action or claim, and making employees available on a mutually convenient basis to provide additional information and explanation of such settlementany material provided hereunder, and the indemnifying party shall reimburse the indemnified party for all of its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (XFormity Technologies, Inc.)
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the The indemnifying party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have the right to conduct and control, through counsel of its own choosing, reasonably acceptable to the indemnified party, any third Person legal action or other claim, but the indemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that if the indemnifying party shall fail to defend any such legal action or other claim, then the indemnified party may defend, contestthrough counsel of its own choosing, negotiate such legal action or other claim, and (so long as it gives the indemnifying party at least fifteen (15) days’ notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the defense thereof) settle such legal action or other claim and to recover 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 such legal action or other claim or demand through counsel of his or its own selection (who shall be reasonably acceptable to the Indemnified Party), at the Indemnifying Party’s own cost and expense, and the Indemnified Party shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentence, the Indemnifying Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent of the indemnified party, which consent shall not unreasonably be withheld, delayed or conditioned if the terms and conditions of such compromise or settlement proposed by the indemnifying party and agreed to in writing by the claimant in such legal action or other claim (the “Settlement Proposal”) (a) include a full release of the indemnified party from the legal action or other claim which is the subject of the Settlement Proposal, and (b) if the indemnified party is a Buyer Indemnified Party, do not include any term or condition which consent will not be unreasonably withheldwould restrict in any material manner the continued ownership or operations of the Subject Contracts or the conduct of the Business in substantially the manner then being owned, conditioned operated and conducted by Buyer (or delayedany successor or assign). If No matter whether an indemnifying party defends or prosecutes any third Person legal action or claim, the Indemnifying Party gives notice to the Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writing, that the Indemnifying Party elects to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand indemnified and the Indemnifying Party indemnifying parties shall cooperate with and assist the Indemnified Party in the defense of such claim or demand, provided, however, that the Indemnified Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent (which may prosecution thereof. Such cooperation shall include a general or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement access during normal business hours afforded to the amount indemnifying party to, and reasonable retention by the indemnified party of, records and information which are reasonably relevant to Confidential Information Redacted and Filed Separately with the Commission. Omitted Portions Indicated by [**]. Confidential Treatment Requested by HyperFeed Technologies, Inc. such third Person legal action or claim, and making employees available on a mutually convenient basis to provide additional information and explanation of such settlementany material provided hereunder, and the indemnifying party shall reimburse the indemnified party for all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Hyperfeed Technologies Inc)
Defense of Third Person Claims. With respect If an Injured Party is entitled to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder because of a claim asserted by any claimant (the party seeking indemnification being referred to herein as the other than an Indemnified Person hereunder) (a “Indemnified PartyThird Person”), whenever the Indemnified Injured Party will have received shall give a written notice Notice of Claim to the Indemnifying Party promptly after such assertion is actually known to the Injured Party; provided, however, that such a claim no delay or demand has been asserted or threatened, deficiency on the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and part of the facts within Injured Party in delivering a Notice of Claim shall relieve the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving Indemnifying Party of any Liability hereunder unless (and solely to the extent) the Indemnifying Party is prejudiced by such written noticedelay, deficiency or failure. The Indemnifying Party will then shall have the right right, upon written notice to defendthe Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claim, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, negotiate or settle any the claim alleged by such claim or demand through counsel of his or its own selection Third Person (who shall be reasonably acceptable to the Indemnified Partya “Third Person Claim”), at the Indemnifying Party’s own cost and expense, and the Indemnified Party shall cooperate with and assist ; provided that the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the defense of Injured Party with respect to such claim or demand. Notwithstanding the preceding sentence, Third Person Claim; and provided further that the Indemnifying Party will not settle, compromise, consent to the entry of any judgment with respect to the matter or offer enter into any settlement with respect to settle or compromise any such claim or demand the matter without the prior written consent of the Indemnified Injured Party (not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which consent will not case such representation shall be unreasonably withheld, conditioned or delayedat the expense of the Indemnifying Party. If the Indemnifying Party gives notice elects not to defend the Indemnified Injured Party within twenty Business Days after with respect to such Third Person Claim, the Indemnified Injured Party has notified shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party that any such claim or demand has been made in writing, that the Indemnifying Party elects does not so elect to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand indemnify and the Indemnifying Party shall cooperate with and assist the Indemnified Party in assume the defense of any such claim Third Person Claim (or demandfails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), provided(a) the Injured Party may defend against such claim, howeverin such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Indemnified Injured Party will not settle, compromise, consent to the entry of a judgment or offer enter into any settlement with respect to settle or compromise any such claim or demand the matter without the prior written consent (which may include a general or limited consent) of the Indemnifying PartyParty (not to be withheld or delayed unreasonably), which consent will not be unreasonably withheld, conditioned or delayed. In the event except that the Stockholders’ Representative has consented Injured Party shall be entitled to consent to any settlement, judgment and/or enter into any settlement without the Stockholders shall have no power consent of the Indemnifying Party if such judgment or authority to object under any provision settlement does not require the payment of this Agreement to money and (b) the amount Indemnifying Party may participate in (but not control) the defense of such settlementaction, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sonoma Pharmaceuticals, Inc.)
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any legal or administrative action or suit with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, negotiate settle or settle any compromise such claim or demand Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel of his or its own selection (who shall be reasonably acceptable satisfactory to the Indemnified Party), Claimant and at the Indemnifying Party’s own cost sole expense, the conduct and expensesettlement of such action or suit, and the Indemnified Party Claimant shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentenceconnection therewith; provided, however, that (a) the Indemnifying Party will shall not settle, compromise, or offer thereby consent to settle or compromise the imposition of any such claim or demand injunction against the Claimant without the prior written consent of the Indemnified PartyClaimant, which consent will not be unreasonably withheld, conditioned or delayed. If (b) the Indemnifying Party gives notice shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Indemnified Party within twenty Business Days after Claimant, but the Indemnified Party has notified fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (c) below, (c) upon a final determination of such action or suit, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article VII, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that any the Claimant incurred after the assumption of the conduct and control of such claim action or demand has been made in writing, that suit by the Indemnifying Party elects to in good faith (which fees and expenses shall be borne by the Claimant), and (d) the Claimant shall have the Indemnified Party defend, contest, negotiate, right to pay or settle any such claim action or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and the Indemnifying Party shall cooperate with and assist the Indemnified Party in the defense of such claim or demand, suit; provided, however, that the Indemnified Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent (which may include a general or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. In in the event that the Stockholders’ Representative has consented to any of such payment or settlement, the Stockholders Claimant shall have waive any right to indemnity therefor by the Indemnifying Party and no power or authority to object amount in respect thereof shall be claimed as an Indemnity Loss under any provision of this Agreement to the amount of such settlementArticle VII.
Appears in 1 contract
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”i) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have 30 calendar days (or, to the right extent possible, such shorter period as may be sufficient under the circumstances to defendgive the Indemnifying Party a reasonable opportunity to respond) after receipt of the Litigation Notice to notify the Claimant that it elects to undertake, contest, negotiate or settle any such claim or demand conduct and assume control (through counsel of his or its own selection (who shall be Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an identifiable claim (the Indemnified Party“Election Notice”); provided¸ that, at as a condition precedent to the Indemnifying Party’s own cost and expense, and the Indemnified Party shall cooperate with and assist the Indemnifying Party in the defense right to assume control of such claim or demand. Notwithstanding the preceding sentencedefense, the Indemnifying Party will not settle, compromise, or offer must (A) first demonstrate to settle or compromise any such claim or demand without the prior written consent Claimant in writing (1) reasonable evidence of the Indemnified Indemnifying Party’s financial ability to provide indemnification to the extent provided hereunder to the Claimant with respect to such third party claim and (2) after giving effect to the application of the limitations in this ARTICLE VII, which consent will not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party gives notice would be responsible for a greater portion of the Losses related to such third party claim than the Claimant, and (B) agree to provide indemnification to the Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writingextent provided hereunder; provided, further, that the Indemnifying Party elects to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will shall not have the right to contest and/or settle assume control of such defense and shall pay the fees and expenses of counsel retained by the Claimant (to the extent required herein), if (1) the third party claim seeks an injunction or equitable relief, or relief for other than money damages against the Claimant that the Claimant reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, (2) the third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its affiliates or any of their respective Personnel, (3) the parties to any such third party claim or demand threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and the Indemnifying Party shall cooperate with have been advised in writing by counsel for the Claimant that there exists legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Party and assist the Indemnified Claimant, (4) the Indemnifying Party in the defense of failed or is failing to diligently prosecute or defend such claim or demand, provided, however, that the Indemnified Party will not settle, compromisethird party claim, or offer (5) the third party claim relates to settle or compromise arises in connection with any such claim environmental, health or demand without the prior written consent (which may include a general safety conditions or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlementmatters.
Appears in 1 contract
Samples: Stock Purchase Agreement (Elite Education Group International LTD)
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have twenty (20) Business Days after receipt of the Litigation Notice to notify the Claimant in writing that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such twenty (20) Business Day period, the Claimant shall have the right (but not the obligation) to defend, contest, negotiate settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend, contest, settle any or compromise such claim or demand Proceeding and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel of his or its own selection (who shall be reasonably acceptable satisfactory to the Indemnified Party), Claimant and at the Indemnifying Party’s own cost and sole expense, the defense, contest, settlement or compromise of such Proceeding, and the Indemnified Party Claimant shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentenceconnection therewith; provided, however, that (a) the Indemnifying Party will shall not settle, compromise, or offer thereby consent to settle or compromise the imposition of any such claim or demand injunction against the Claimant without the prior written consent of the Indemnified PartyClaimant, which consent will not be unreasonably withheld, conditioned or delayed. If (b) the Indemnifying Party gives notice shall permit the Claimant to participate in such defense, contest, settlement or compromise through legal counsel chosen by the Indemnified Party within twenty Business Days after Claimant, but the Indemnified Party has notified fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (c) below, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article 8, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith (which fees and expenses shall be borne by the Claimant), and (d) the Claimant shall have the right to pay or settle any such claim Proceeding; provided, however, that in the event of such payment or demand has been made settlement, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in writingrespect thereof shall be claimed as an Indemnity Loss under this Article 8. Notwithstanding any other provision of this Agreement to the contrary, if any Third Person Claim relating to the Assets or the Assumed Liabilities is brought or instituted and the Claimant gives a Litigation Notice to the Indemnifying Party with respect thereto, Claimant will have the sole and exclusive right to conduct and control such Third Person Claim in a commercially reasonable manner through counsel of its choosing. The Indemnifying Party will be entitled to participate in the Third Person Claim as described herein, provided that the Indemnifying Party elects acknowledges its obligation to have indemnify the Indemnified Party defend, contest, negotiate, or settle Claimant in accordance with the terms contained in Article 8 (including reasonable expenses of counsel and other reasonable expenses of the Third Person Claim) and it reimburses the Claimant for any such claim or demand, then amount paid to any Governmental Entity in order to pursue a contest of the Indemnified Third Person Claim. The Indemnifying Party will have the right to contest and/or settle employ, at its own expense, separate counsel, such counsel to be reasonably satisfactory to the Claimant, in any such claim Proceeding and participate in its defence. Such participation will be strictly limited to being kept informed of the status of the Third Person Claim by counsel to Purchaser, to reviewing any proposed written communications and other documents to be submitted to the relevant Governmental Entity or demand filed with a court, arbitrator or mediator in respect of the Third Person Claim and to receiving copies of any correspondence received from any Governmental Entity, party to such Third Person Claim, court, arbitrator or mediator relating to such Third Person Claim, except that no compromise or settlement of any Third Person Claim or claims relating to the Indemnifying Party shall cooperate with and assist Assets or the Indemnified Party in Assumed Liabilities may be made by the defense of such claim or demand, provided, however, that the Indemnified Party will not settle, compromise, or offer to settle or compromise any such claim or demand Claimant without the prior written consent (which may include a general or limited consent) of the Indemnifying Party’s consent, which consent will may not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlement.
Appears in 1 contract
Defense of Third Person Claims. With respect If an Injured Party is entitled to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder because of a claim asserted by any claimant (the party seeking indemnification being referred to herein as the other than an indemnified Person hereunder) (“Indemnified PartyThird Person”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then have the right to defend, contest, negotiate or settle any such claim or demand through counsel of his or its own selection (who shall be reasonably acceptable to the Indemnified Party), at the Indemnifying Party’s own cost and expense, and the Indemnified Injured Party shall cooperate with and assist give a Notice of Claim to the Indemnifying Party in the defense of within 30 days after such claim or demand. Notwithstanding the preceding sentence, the Indemnifying Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party gives notice assertion is actually known to the Indemnified Injured Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writing, that the Indemnifying Party elects to have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and the Indemnifying Party shall cooperate with and assist the Indemnified Party in the defense of such claim or demand, by written notice; provided, however, that the Indemnified right of a Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such Notice of Claim unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Injured Party, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a “Third Person Claim”) provided that the Indemnifying Party notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not settleconsent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter without the written consent of the Injured Party (not to be withheld or delayed unreasonably) except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money (without admitting fault) and effective upon the payment by the Indemnifying Party of all such money due. For the avoidance of doubt, compromisea claim or challenge asserted by a governmental agency, including without limitation the IRS, the U.S. Department of Commerce or offer to settle or compromise the U.S. Treasury Department, against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such claim or demand without Third Person Claim with its own counsel at its own expense, except in the prior written consent (which may include event of a general or limited consent) conflict of interest, where the Indemnified Party can control and the Indemnifying PartyParty must reimburse. For purposes of clarification, which consent will the fact that the Injured Party has sought indemnification from the Indemnified Party shall not be unreasonably withheld, conditioned or delayedconsidered in determining whether a conflict of interest exists. In If the event that Indemnifying Party elects not to defend the Stockholders’ Representative has consented Injured Party with respect to any settlementsuch Third Person Claim, the Stockholders Injured Party shall have no power or authority the right, at its option, to object under any provision assume and control defense of this Agreement to the amount of such settlement.the
Appears in 1 contract
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control or assume the defense of any legal or administrative action or suit with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, negotiate settle or settle any compromise such claim or demand Proceeding; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel of his or its own selection (who shall be reasonably acceptable satisfactory to the Indemnified Party), Claimant and at the Indemnifying Party’s own cost sole expense, the conduct and expensesettlement of such action or suit, and the Indemnified Party Claimant shall cooperate in a commercially reasonable manner with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentenceconnection therewith; provided, however, that (a) the Indemnifying Party will shall not settle, compromise, or offer to settle or compromise any such claim or demand legal proceeding without the prior written consent of the Indemnified PartyClaimant unless such settlement involves solely the payment of money and does not include any admission of wrongdoing or equitable relief, in which case the consent will of the Claimant shall not be unreasonably withheld, conditioned or delayed. If (b) the Indemnifying Party gives notice shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Indemnified Party within twenty Business Days after Claimant, but the Indemnified Party has notified fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (c) below, (c) upon a final determination of such action or suit, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article VIII, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that any the Claimant incurred after the assumption of the conduct and control of such claim action or demand has been made in writing, that suit by the Indemnifying Party elects to in good faith (which fees and expenses shall be borne by the Claimant), and (d) the Claimant shall have the Indemnified Party defend, contest, negotiate, right to pay or settle any such claim action or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and the Indemnifying Party shall cooperate with and assist the Indemnified Party in the defense of such claim or demand, provided, however, that the Indemnified Party will not settle, compromise, or offer to settle or compromise any such claim or demand without the prior written consent (which may include a general or limited consent) of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlementsuit.
Appears in 1 contract
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have ten (10) calendar days after receipt of the Claim Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnifiable Losses set forth in the Claim Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice or does not give the foregoing Election Notice during such 10-day period, the Claimant shall have the right (but not the obligation) to defend, contest, negotiate settle or settle any compromise such claim or demand Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnifiable Losses and provide indemnification with respect to such Indemnifiable Losses, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel of his or its own selection (who shall be reasonably acceptable satisfactory to the Indemnified Party)Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s own cost sole expense, the conduct and expensesettlement of such Proceeding, including, but limited to, controlling all negotiations, litigation, arbitration, settlements, compromises and appeals of any claim, and the Indemnified Party Claimant shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentenceconnection therewith; provided, however, that (a) the Indemnifying Party will shall not settle, compromise, or offer (i) thereby consent to settle or compromise the imposition of any such claim or demand injunction against the Claimant without the prior written consent of the Indemnified PartyClaimant or (ii) agree to any settlement involving any Claimant that contains any element other than the payment of money and complete indemnification and an unconditional release of the Claimant without the prior written consent of the affected Claimant, which consent will not be unreasonably withheld, conditioned or delayed. If (b) the Indemnifying Party gives notice shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Indemnified Party within twenty Business Days after Claimant, but the Indemnified Party has notified fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party that any shall have agreed in writing to the continuing participation of such claim or demand has been made in writingcounsel, that (ii) the Indemnifying Party elects has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, (iii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, or (iv) the Claimant has reasonably concluded (based upon advice of counsel to the Claimant) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the Indemnifying Party, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article III, for the full amount of any Indemnifiable Losses incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the Indemnified Party defend, contest, negotiate, right to pay or settle any such claim or demandProceeding; provided Claimant has presented such settlement proposal to the Indemnifying Party and if the Indemnifying Party fails to respond to such proposal within the time frame requested, then the Indemnified Party will have the right to contest and/or settle but in any event, within five Business Days of receipt of such claim or demand and proposal, the Indemnifying Party shall cooperate be deemed to have consented to such settlement proposal; provided however, that in the event of such payment or settlement which is not consented to or deemed to have been consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as Indemnifiable Losses under this Article III and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant provided that such settlement (i) includes a provision unconditionally releasing the Claimant from all liability in respect of claims by any releasing party related to or arising out of any transactions or conduct in connection therewith and assist (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any such Claimant. Notwithstanding anything herein to the Indemnified contrary, the Indemnifying Party in shall not be entitled to assume or maintain control of the defense of such claim or demandany Proceeding, provided, however, that the Indemnified Party will shall not settle, compromise, or offer be entitled to settle or compromise any such claim or demand without Proceeding, and shall pay the prior written consent (which may include a general or limited consent) reasonable fees and expenses of counsel retained by the Indemnifying PartyClaimant, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlement.33
Appears in 1 contract
Samples: Custodial Agreement
Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party will then shall have ten (10) calendar days after receipt of the Claim Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnifiable Losses set forth in the Claim Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice or does not give the foregoing Election Notice during such 10-day period, the Claimant shall have the right (but not the obligation) to defend, contest, negotiate settle or settle any compromise such claim or demand Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnifiable Losses and provide indemnification with respect to such Indemnifiable Losses, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel of his or its own selection (who shall be reasonably acceptable satisfactory to the Indemnified Party)Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s own cost sole expense, the conduct and expensesettlement of such Proceeding, including, but limited to, controlling all negotiations, litigation, arbitration, settlements, compromises and appeals of any claim, and the Indemnified Party Claimant shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the preceding sentenceconnection therewith; provided, however, that (a) the Indemnifying Party will shall not settle, compromise, or offer (i) thereby consent to settle or compromise the imposition of any such claim or demand injunction against the Claimant without the prior written consent of the Indemnified PartyClaimant or (ii) agree to any settlement involving any Claimant that contains any element other than the payment of money and complete indemnification and an unconditional release of the Claimant without the prior written consent of the affected Claimant, which consent will not be unreasonably withheld, conditioned or delayed. If (b) the Indemnifying Party gives notice shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Indemnified Party within twenty Business Days after Claimant, but the Indemnified Party has notified fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party that any shall have agreed in writing to the continuing participation of such claim or demand has been made in writingcounsel, that (ii) the Indemnifying Party elects has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, (iii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, or (iv) the Claimant has reasonably concluded (based upon advice of counsel to the Claimant) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the Indemnifying Party, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article III, for the full amount of any Indemnifiable Losses incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the Indemnified Party defend, contest, negotiate, right to pay or settle any such claim or demandProceeding; provided Claimant has presented such settlement proposal to the Indemnifying Party and if the Indemnifying Party fails to respond to such proposal within the time frame requested, then the Indemnified Party will have the right to contest and/or settle but in any event, within five Business Days of receipt of such claim or demand and proposal, the Indemnifying Party shall cooperate be deemed to have consented to such settlement proposal; provided however, that in the event of such payment or settlement which is not consented to or deemed to have been consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as Indemnifiable Losses under this Article III and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant provided that such settlement (i) includes a provision unconditionally releasing the Claimant from all liability in respect of claims by any releasing party related to or arising out of any transactions or conduct in connection therewith and assist (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any such Claimant. Notwithstanding anything herein to the Indemnified contrary, the Indemnifying Party in shall not be entitled to assume or maintain control of the defense of such claim or demandany Proceeding, provided, however, that the Indemnified Party will shall not settle, compromise, or offer be entitled to settle or compromise any such claim Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or demand without arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the prior written consent Proceeding seeks injunctive or equitable relief against the Claimant, or (which may include a general or limited consentc) of the Indemnifying Party, which consent will Party has not be unreasonably withheld, conditioned elected to defend or delayed. In is failing to defend in good faith the event that the Stockholders’ Representative has consented to any settlement, the Stockholders shall have no power or authority to object under any provision of this Agreement to the amount of such settlementProceeding.
Appears in 1 contract
Samples: Transition Subservicing Agreement (Nationstar Mortgage Holdings Inc.)
