Common use of Employment of Counsel by the Indemnitee Clause in Contracts

Employment of Counsel by the Indemnitee. (i) Notwithstanding the provisions of Section 11.03(c), the Indemnitee shall have the right to engage counsel and to control the defense of a Third-Party Claim if the Indemnitor shall not have notified the Indemnitee of its appointment of counsel and control of the defense of a Third-Party Claim pursuant to Section 11.03(c) within the time period therein provided. (ii) Notwithstanding the engagement of counsel by the Indemnitor, the Indemnitee shall have the right, at its own expense, to engage counsel to participate jointly with the Indemnitor in, and to control jointly with the Indemnitor, the defense of a Third-Party Claim if (x) the Third-Party Claim involves remedies other than monetary damages and such remedies, in the Indemnitee's reasonable judgment, could have an effect on the conduct of the Indemnitee's business, or (y) the Third-Party Claim relates to acts, omissions, conditions, events or other matters occurring after the Closing Date as well as to acts, omissions, conditions, events or other matters occurring prior to the Closing Date, or (z) the claims involve monetary damages which could exceed Seller's Cap. (iii) If the Indemnitee chooses to exercise its right to appoint counsel under this Section 11.03(d), the Indemnitee shall deliver notice thereof to the Indemnitor setting forth in reasonable detail why it believes that it has such right and the name of the counsel it proposes to employ. The Indemnitee may deliver such notice at any time that the conditions to the exercise of such right appear to be fulfilled, it being recognized that in the course of litigation, the scope (iv) The reasonable fees and expenses of counsel and any accountants, experts or consultants engaged by the Indemnitee in accordance with the provisions of Section 11.03(d)(i) in connection with defending a Third-Party Claim shall be paid by the Indemnitor in accordance with the provisions of this Article 11. If the Indemnitee's employment of counsel is for a Third-Party Claim of the type described in subdivision (ii)(y) or (ii)(z) of this Section 11.03(d), then subject to the provisions of Section 11.03(e), the amount of fees and expenses so payable by the Indemnitor shall be that fraction of the aggregate of such fees and expenses, the numerator of which is the portion of the amount of any judgment on, or settlement of, such Third-Party Claim for which the Indemnitee is indemnified pursuant to this Article 11 and the denominator of which is the total amount of such judgment or settlement, but provided further, if such defense of a Third-Party Claim is successful (in the sense that as a consequence thereof, there is no Loss (other than such fees and expenses) for which the Indemnitee is indemnified pursuant to this Article 11), the Indemnitee and the Indemnitor will attempt in good faith to reach an agreement on the amount of such fees and expenses so payable by the Indemnitor.

Employment of Counsel by the Indemnitee. (i) Notwithstanding the provisions provision of Section 11.03(c12.3(c), the Indemnitee shall have the right at the sole cost and expense of Indemnitor to engage counsel and to control the defense of a Third-Party Claim if the Indemnitor shall not have notified the Indemnitee of its appointment of counsel and control of the defense of a Third-Party Claim pursuant to Section 11.03(c12.3(c) within the time period therein provided. (ii) Notwithstanding the engagement of counsel by the Indemnitor, the Indemnitee shall have the right, at its own expense, to engage counsel to participate jointly with the Indemnitor in, and to control jointly with the Indemnitor, the defense defenses of a Third-Party Claim if (xA) the Third-Party Claim involves remedies other than monetary damages and such remedies, in the Indemnitee's reasonable judgment, could have an effect on the conduct of the Indemnitee's business, or (yB) the Third-Party Claim relates to acts, omissions, conditions, events or other matters occurring after the Closing Date as well as to acts, omissions, conditions, events or other matters occurring prior to the Closing Date, or (zC) the claims involve Third Party Claim involves monetary damages which could exceed Seller's CapSellers' Cap or (D) if in any such Third-Party Claim, the named parties to any such proceeding (including any impleaded parties) include both the Indemnitee and the Indemnitor or if the Indemnitor proposes that the same counsel represent both the Indemnitor and the Indemnitee and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. (iii) If the Indemnitee chooses to exercise its right to appoint counsel under this Section 11.03(d12.3(d), the Indemnitee shall deliver notice thereof to the Indemnitor setting forth in reasonable detail why it believes that it has such right and the name of the counsel it proposes to employ. The Indemnitee may deliver such notice at any time that the conditions to the exercise of such right appear to be fulfilled, it being recognized that in the course of litigation, the scopescope of litigation and the amount at stake may change. The Indemnitee shall thereupon have the right to appoint such counsel. (iv) The reasonable fees and expenses of counsel and any accountants, experts or consultants engaged by the Indemnitee in accordance with the provisions of Section 11.03(d)(i12.3(d)(i) in connection with defending a Third-Party Claim shall be paid by the Indemnitor in accordance with the provisions of this Article 11XII. If the Indemnitee's employment of counsel is for a Third-Party Claim of the type described in subdivision (ii)(yii)(B) or (ii)(zii)(C) of this Section 11.03(d12.3(d), then subject to the provisions of Section 11.03(e12.3(e), the amount of fees and expenses so payable by the Indemnitor shall be that fraction of the aggregate of such fees and expenses, the numerator of which is the portion of the amount of any judgment on, or settlement of, such Third-Party Claim for which the Indemnitee is indemnified pursuant to this Article 11 XII and the denominator of which is the total amount of such judgment or settlement, but provided further, if such defense of a Third-Party Claim is successful (in the sense that as a consequence thereof, there is no Loss (other than such fees and expenses) for which the Indemnitee is indemnified pursuant to this Article 11XII), the Indemnitee and the Indemnitor will attempt in good faith to reach an agreement on the amount of such fees and expenses so payable by the Indemnitor.

Employment of Counsel by the Indemnitee. (i) Notwithstanding the provisions of Section 11.03(c), the Indemnitee shall have the right to engage counsel and to control the defense of a Third-Party Claim if the Indemnitor shall not have notified the Indemnitee of its appointment of counsel and control of the defense of a Third-Party Claim pursuant to Section 11.03(c) within the time period therein provided. (ii) Notwithstanding the engagement of counsel by the Indemnitor, the Indemnitee shall have the right, at its own expense, to engage counsel to participate jointly with the Indemnitor in, and to control jointly with the Indemnitor, the defense of a Third-Party Claim if (x) the Third-Party Claim involves remedies other than monetary damages and such remedies, in the Indemnitee's reasonable judgment, could have an effect on the conduct of the Indemnitee's business, or (y) the Third-Party Claim relates to acts, omissions, conditions, events or other matters occurring after the Closing Date as well as to acts, omissions, conditions, events or other matters occurring prior to the Closing Date, or (z) the claims involve monetary damages which could exceed Seller's Cap. (iii) If the Indemnitee chooses to exercise its right to appoint counsel under this Section 11.03(d), the Indemnitee shall deliver notice thereof to the Indemnitor setting forth in reasonable detail why it believes that it has such right and the name of the counsel it proposes to employ. The Indemnitee may deliver such notice at any time that the conditions to the exercise of such right appear to be fulfilled, it being recognized that in the course of litigation, the scopescope of litigation and the amount at stake may change. The Indemnitee shall thereupon have the right to appoint such counsel. (iv) The reasonable fees and expenses of counsel and any accountants, experts or consultants engaged by the Indemnitee in accordance with the provisions of Section 11.03(d)(i) in connection with defending a Third-Party Claim shall be paid by the Indemnitor in accordance with the provisions of this Article 11. If the Indemnitee's employment of counsel is for a Third-Party Claim of the type described in subdivision (ii)(y) or (ii)(z) of this Section 11.03(d), then subject to the provisions of Section 11.03(e), the amount of fees and expenses so payable by the Indemnitor shall be that fraction of the aggregate of such fees and expenses, the numerator of which is the portion of the amount of any judgment on, or settlement of, such Third-Third- Party Claim for which the Indemnitee is indemnified pursuant to this Article 11 and the denominator of which is the total amount of such judgment or settlement, but provided further, if such defense of a Third-Party Claim is successful (in the sense that as a consequence thereof, there is no Loss (other than such fees and expenses) for which the Indemnitee is indemnified pursuant to this Article 11), the Indemnitee and the Indemnitor will attempt in good faith to reach an agreement on the amount of such fees and expenses so payable by the Indemnitor.

Employment of Counsel by the Indemnitee. (i) Notwithstanding the provisions of Section 11.03(c), the Indemnitee shall have the right to engage counsel and to control the defense of a Third-Party Claim if the Indemnitor shall not have notified the Indemnitee of its appointment of counsel and control of the defense of a Third-Party Claim pursuant to Section 11.03(c11.03 (c) within the time period therein provided. (ii) Notwithstanding the engagement of counsel by the Indemnitor, the Indemnitee shall have the right, at its own expense, to engage counsel to participate jointly with the Indemnitor in, and to control jointly with the Indemnitor, the defense of a Third-Party Claim if (x) the Third-Party Claim involves remedies other than monetary damages and such remedies, in the Indemnitee's reasonable judgment, could have an effect on the conduct of the Indemnitee's business, or (y) the Third-Party Claim relates to acts, omissions, conditions, events or other matters occurring after the Closing Date as well as to acts, omissions, conditions, events or other matters occurring prior to the Closing Date, or (z) the claims involve monetary damages which could exceed Seller's Cap. (iii) If the Indemnitee chooses to exercise its right to appoint counsel under this Section 11.03(d), the Indemnitee shall deliver notice thereof to the Indemnitor setting forth in reasonable detail why it believes that it has such right and the name of the counsel it proposes to employ. The Indemnitee may deliver such notice at any time that the conditions to the exercise of such right appear to be fulfilled, it being recognized that in the course of litigation, the scopescope of litigation and the amount at stake may change. The Indemnitee shall thereupon have the right to appoint such counsel. (iv) The reasonable fees and expenses of counsel and any accountants, experts or consultants engaged by the Indemnitee in accordance with the provisions of Section 11.03(d)(i) in connection with defending a Third-Party Claim shall be paid by the Indemnitor in accordance with the provisions of this Article 11. If the Indemnitee's employment of counsel is for a Third-Party Claim of the type described in subdivision (ii)(y) or (ii)(z) of this Section 11.03(d), then subject to the provisions of Section 11.03(e), the amount of fees and expenses so payable by the Indemnitor shall be that fraction of the aggregate of such fees and expenses, the numerator of which is the portion of the amount of any judgment on, or settlement of, such Third-Party Claim for which the Indemnitee is indemnified pursuant to this Article 11 II and the denominator of which is the total amount of such judgment or settlement, but provided further, if such defense of a Third-Party Claim is successful (in the sense that as a consequence thereof, there is no Loss (other than such fees and expenses) for which the Indemnitee is indemnified pursuant to this Article 11), the Indemnitee and the Indemnitor will attempt in good faith to reach an agreement on the amount of such fees and expenses so payable by the Indemnitor.

Employment of Counsel by the Indemnitee. (i) Notwithstanding the provisions of Section 11.03(c10.3(c), the Indemnitee shall have the right to engage counsel and to control the defense of a Third-Party Claim if the Indemnitor shall not have notified the Indemnitee of its appointment of counsel and control of the defense of a Third-Party Claim pursuant to Section 11.03(c10.3(c) within the time period therein provided. (ii) Notwithstanding the engagement of counsel by the Indemnitor, the Indemnitee shall have the right, at its own expense, to engage counsel to participate jointly with the Indemnitor in, and to control jointly with the Indemnitor, the defense of a Third-Party Claim if (x) the Third-Party Claim involves remedies other than monetary damages and such remedies, in the Indemnitee's reasonable judgment, could have an effect on the conduct of the Indemnitee's business, or (y) the Third-Party Claim relates to acts, omissions, conditions, events or other matters occurring after the Closing Consummation Date as well as to acts, omissions, conditions, events or other matters occurring prior to the Closing Consummation Date, or (z) the claims involve monetary damages which could exceed Seller's Cap or the Buyer's Cap. (iii) If the Indemnitee chooses to exercise its right to appoint counsel under this Section 11.03(d10.3(d), the Indemnitee shall deliver notice thereof to the Indemnitor setting forth in reasonable detail why it believes that it has such right and the name of the counsel it proposes to employ. The Indemnitee may deliver such notice at any time that the conditions to the exercise of such right appear to be fulfilled, it being recognized that in the course of litigation, the scopescope of litigation and the amount at stake may change. The Indemnitee shall thereupon have the right to appoint such counsel. (iv) The reasonable fees and expenses of counsel and any accountants, experts or consultants engaged by the Indemnitee in accordance with the provisions of Section 11.03(d)(i10.3(d)(i) in connection with defending a Third-Party Claim shall be paid by the Indemnitor in accordance with the provisions of this Article 1110. If the Indemnitee's employment of counsel is for a Third-Party Claim of the type described in subdivision (ii)(y) or (ii)(z) of this Section 11.03(d10.3(d), then subject to the provisions of Section 11.03(e10.3(e), the amount of fees and expenses so payable by the Indemnitor shall be that fraction of the aggregate of such fees and expenses, the numerator of which is the portion of the amount of any judgment on, or settlement of, such Third-Party Claim for which the Indemnitee is indemnified pursuant to this Article 11 10 and the denominator of which is the total amount of such judgment or settlement, but provided further, if such defense of a Third-Party Claim is successful (in the sense that as a consequence thereof, there is no Loss (other than such fees and expenses) for which the Indemnitee is indemnified pursuant to this Article 1110), the Indemnitee and the Indemnitor will attempt in good faith to reach an agreement on the amount of such fees and expenses so payable by the Indemnitor.

Employment of Counsel by the Indemnitee. (i) Notwithstanding the provisions of Section 11.03(c9.6(c), the Indemnitee shall have the right to engage counsel and to control the defense of a Third-Party Claim if the Indemnitor shall not have notified the Indemnitee of its appointment of counsel and control of the defense of a Third-Party Claim pursuant to Section 11.03(c9.6(c) within the time period therein provided. (ii) Notwithstanding the engagement of counsel by the Indemnitor, the Indemnitee shall have the right, at its own expense, to engage counsel to participate jointly with the Indemnitor in, and to control jointly with the Indemnitor, the defense of a Third-Party Claim if (x) the Third-Party Claim involves remedies other than monetary damages and such remedies, in the Indemnitee's reasonable judgment, could have an effect on the conduct of the Indemnitee's business, or (y) the Third-Party Claim relates to acts, omissions, conditions, events or other matters occurring after the Closing Consummation Date as well as to acts, omissions, conditions, events or other matters occurring prior to the Closing Consummation Date, or (z) the claims involve monetary damages which could exceed Seller's Cap or the Buyer's Cap. (iii) If the Indemnitee chooses to exercise its right to appoint counsel under this Section 11.03(d9.6(d), the Indemnitee shall deliver notice thereof to the Indemnitor setting forth in reasonable detail why it believes that it has such right and the name of the counsel it proposes to employ. The Indemnitee may deliver such notice at any time that the conditions to the exercise of such right appear to be fulfilled, it being recognized that in the course of litigation, the scopescope of litigation and the amount at stake may change. The Indemnitee shall thereupon have the right to appoint such counsel. (iv) The reasonable fees and expenses of counsel and any accountants, experts or consultants engaged by the Indemnitee in accordance with the provisions of Section 11.03(d)(i9.6(d)(i) in connection with defending a Third-Party Claim shall be paid by the Indemnitor in accordance with the provisions of this Article 11Section 9. If the Indemnitee's employment of counsel is for a Third-Party Claim of the type described in subdivision (ii)(y) or (ii)(z) of this Section 11.03(d9.6(d), then subject to the provisions of Section 11.03(e9.6(e), the amount of fees and expenses so payable by the Indemnitor shall be that fraction of the aggregate of such fees and expenses, the numerator of which is the portion of the amount of any judgment on, or settlement of, such Third-Party Claim for which the Indemnitee is indemnified pursuant to this Article 11 Section 9 and the denominator of which is the total amount of such judgment or settlement, but provided further, if such defense of a Third-Party Claim is successful (in the sense that as a consequence thereof, there is no Loss (other than such fees and expenses) for which the Indemnitee is indemnified pursuant to this Article 11Section 9), the Indemnitee and the Indemnitor will attempt in good faith to reach an agreement on the amount of such fees and expenses so payable by the Indemnitor.

Employment of Counsel by the Indemnitee. (i) Notwithstanding the provisions of Section 11.03(c10.4(c), the Indemnitee shall have the right to engage counsel and to control the defense of a Third-Third Party Claim if if: (i) the Indemnitor shall not have notified the Indemnitee of its appointment the exercise of their right to choose counsel and control of the defense of a Third-Party Claim pursuant to Section 11.03(c10.4(c) within the time period therein provided.; (ii) Notwithstanding the engagement Third Party Claim is a claim for the payment of counsel by the Indemnitor, the Indemnitee shall have the right, at its own expense, to engage counsel to participate jointly with the Indemnitor in, and to control jointly with the Indemnitor, the defense taxes arising out of an audit of a Third-Party Claim if tax period ending subsequent to the Closing Date but which may nevertheless affect the tax liability of the Company for a tax period ending prior to the Closing Date and therefore be subject to indemnification under the provisions of this Section 10; or (xiii) the Third-Party Claim involves remedies other than monetary damages and such remedies, in the Indemnitee's reasonable judgment, could have an effect on the conduct of the Indemnitee's business, or (y) the Third-Third Party Claim relates in a significant degree to acts, omissions, conditions, events or other matters occurring after during the Closing Date as well as Indemnitee's period of ownership of the Company and the amount attributable thereto that may be reasonably payable, if such Third Party Claim is successful, exceeds the amount so payable which is attributable to acts, omissions, conditions, events or other matters occurring prior to during the Closing Date, or (z) Indemnitor's period of ownership of the claims involve monetary damages which could exceed Seller's Cap. (iii) Company. If the Indemnitee chooses to exercise its right to appoint counsel under this Section 11.03(d10.4(d), the Indemnitee it shall deliver notice thereof to the Indemnitor setting forth in reasonable detail why it believes that it has such right and the name of the counsel it proposes to employ. The Unless the Indemnitor delivers a notice of objection thereto to the Indemnitee may deliver within the following ten (10) business days, the Indemnitee shall have the right to appoint such counsel and to control such defense, assistance or enforcement, but the Indemnitee will cause such counsel to consult with the Indemnitor as to the conduct of such defense, assistance or enforcement. If such notice at any time that the conditions to the exercise of such right appear to be fulfilled, it being recognized that in the course of litigationobjection is timely received, the scope (iv) The reasonable fees and expenses of counsel and any accountants, experts or consultants engaged by the Indemnitee issue may be submitted to arbitration in accordance with the provisions procedures set forth in Section 12, and final determination of Section 11.03(d)(i) in connection with defending a Third-Party Claim the party who shall so appoint counsel and control the defense shall be paid by made upon entry of judgment on the Indemnitor in accordance with the provisions of this Article 11arbitral award. If the Indemnitee's employment of counsel is for a Third-Party Claim of the type described in subdivision (ii)(y) or (ii)(z) of this Section 11.03(d), then subject to the provisions of Section 11.03(e), the amount of fees and expenses so payable by the Indemnitor shall be that fraction of the aggregate of Pending such fees and expenses, the numerator of which is the portion of the amount of any judgment on, or settlement of, such Third-Party Claim for which the Indemnitee is indemnified pursuant to this Article 11 and the denominator of which is the total amount of such judgment or settlement, but provided further, if such defense of a Third-Party Claim is successful (in the sense that as a consequence thereof, there is no Loss (other than such fees and expenses) for which the Indemnitee is indemnified pursuant to this Article 11)determination, the Indemnitee and the shall appoint counsel to defend such Third Party Claim. The Indemnitor will attempt may appoint counsel to assist in good faith to reach an agreement on the amount of such fees and expenses so payable by the Indemnitordefense, assistance or enforcement.