Indemnification Procedure for Third Party Claims. If any indemnified party receives written notice of the commencement of any action or proceeding or the assertion of any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim") and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide the indemnifying party with notice of such third party claim. Except in the case of claims seeking equitable relief from the indemnified party, the indemnifying party shall, upon acknowledgment of its obligation to indemnify the indemnified party, be entitled to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party fails to assume the defense or settlement of any third party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party shall have the right to undertake the defense or settlement of such third party claim at the expense and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claim.
Appears in 1 contract
Samples: Asset Repurchase Agreement (Jean Philippe Fragrances Inc)
Indemnification Procedure for Third Party Claims. If In the event that subsequent to the Closing any indemnified party person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or the assertion an Affiliate of such a party (including, but not limited to any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII Governmental Entity (a "third party claimThird Party Claim") and against such indemnified party intends Indemnified Party, against which a Party is required to seek indemnity pursuant provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such claim to this Article VIII, such indemnified party shall promptly provide the indemnifying party with notice of such third party claim. Except Indemnifying Party within thirty (30) days (or fifteen (15) days in the case of any third party claims seeking equitable relief relating to Taxes) after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within thirty (30) days after receipt from the indemnified party, the indemnifying party shall, upon acknowledgment Indemnified Party of its obligation to indemnify the indemnified party, be entitled to participate in or, at its option, assume the defense or settlement notice of such third party claim. The defense or settlement shall be conducted through counsel selected , (which notice by the indemnifying party and approved by Indemnifying Party shall specify the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, counsel it will appoint at its own expenseexpense and in its sole discretion to defend such claim ("Defense Counsel")), separate counsel to represent it. conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party.
(a) In the event that the indemnifying party fails Indemnifying Party shall fail to assume give such notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim in its reasonable discretion, provided, however that any settlement of a Third Party Claim shall require the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. The Indemnifying Party shall not enter into any settlement of any third party claim Third Party Claim or consent to any entry of judgment without the consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, except (i) a settlement that includes as an unconditional term thereof the giving by the 45 person or persons asserting such Third Party Claim to all Indemnified Parties an unconditional release from liability or (ii) a settlement or judgment providing solely for a monetary award in the full amount of the item in controversy which is indemnified in full hereunder and such settlement is paid directly out of the Post-Closing Escrow Deposit by the Escrow Agent or paid or otherwise provided for by one or more Sellers, as applicable, in accordance with Section 8.2. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (x) injunctive or other equitable relief would be imposed against the Indemnified Party or its Affiliates, (y) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party or its Affiliates for which the Indemnified Party is not entitled to indemnification hereunder or (z) such settlement or cessation would, individually or taken together with any other settlement or cessation made pursuant to this Section 8.4(b)(z), reduce the aggregate adjusted tax basis, as determined for Federal income tax purposes, and determined as of immediately prior to the Closing, of the assets of M&M, MWS, Nevada and any Subsidiaries of M&M, MWS and Nevada, for any taxable period ending after the Closing Date by One Million Dollars ($1,000,000) or more. If a firm offer is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle pursuant to the preceding sentence, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party to that effect. To the extent that the acceptance by the Indemnifying Party of such offer would require the consent of the Indemnified Party, if the Indemnified Party notifies the Indemnifying Party that it does not wish such offer to be accepted within twenty (20) calendar days after its receipt of such notice, the Indemnified Party may elect by such notice thereof from to the indemnified partyIndemnifying Party to continue to contest or defend such Third Party Claim and, in such indemnified party shall have event, the right to undertake the defense or settlement of such third party claim at the expense and for the account maximum liability of the indemnifying party. The indemnifying party shall Indemnifying Party as to such Third Party Claim will not settle any third party claim exceed the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms amount of such settlement offer, plus costs and expenses paid or compromise releases incurred by the Indemnified Party through the end of such indemnified party from any twenty (20) day period.
(c) Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and all liability shall conclusively be deemed to be an obligation with respect to such third party claimwhich the Indemnified Party is entitled to prompt indemnification hereunder.
Appears in 1 contract
Samples: Unit and Stock Purchase and Sale Agreement (Chancellor Media Corp of Los Angeles)
Indemnification Procedure for Third Party Claims. If Upon the assertion by any indemnified third party receives written of a claim against a 3RP Indemnified Party or an SAMARITAN Indemnified Party that may give rise to right of indemnification under this Agreement, the party who, or whose directors, officers or employees, is claiming a right to indemnification (the "Indemnified Party") shall give prompt notice to the party alleged to have the duty to indemnify (the "Indemnifying Party") of the commencement existence of any action or proceeding or such claim (provided that the assertion failure to give such notice in timely fashion shall not release the Indemnifying Party of any claim by a third party or its obligations of indemnification hereunder except to the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim"extent that the Indemnifying Party has been prejudiced thereby) and shall give the Indemnifying Party reasonable opportunity to control, defend and/or settle such indemnified party intends to seek indemnity pursuant to this Article VIIIclaim at its own expense and with counsel of its own selection; provided, such indemnified party shall promptly provide however, that the indemnifying party with notice of such third party claim. Except in the case of claims seeking equitable relief from the indemnified party, the indemnifying party Indemnified Party shall, upon acknowledgment of its obligation at all times, have the right to indemnify the indemnified party, be entitled to fully participate in or, such defense at its optionown expense with separate counsel and, assume provided that both parties to the extent that they are not contractually or legally excluded therefrom, or otherwise prejudiced in a legal position by so doing, shall cooperate with each other and with their respective insurers in relation to the defense or settlement of such third party claim. The defense or settlement Indemnifying Party shall be conducted through counsel selected by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate consult with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time Indemnified Party with respect to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party fails to assume the defense or settlement of any third party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party claim. The Indemnifying Party shall have the right to undertake settle any claim without the defense or settlement of such third party claim at the expense and for the account consent of the indemnifying party. The indemnifying party shall Indemnified Party, provided that the Indemnified Party is unconditionally released from such claim and it is not settle any third party claim the defense or settlement of which is controlled otherwise prejudiced by it without the indemnified party's prior written consent, unless the terms of settlement (including, without limitation, that no obligations in addition to those set forth herein are imposed upon the Indemnified Party). In the event the Indemnifying Party elects to defend such settlement claim, the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party shall, within a reasonable time after such notice has been given, fail to defend, compromise or settle such claim, (or thereafter fails to diligently defend such claim) then the Indemnified Party shall have the right to defend, compromise releases or settle such indemnified party from claim without prejudice to its rights of indemnification hereunder. Notwithstanding the foregoing, in the event of any and all liability dispute with respect to indemnity hereunder, each party shall be entitled to participate in the defense of such third party claimclaim and to join and implead the other in any such action.
Appears in 1 contract
Samples: License and Distribution Agreement (Samaritan Pharmaceuticals Inc)
Indemnification Procedure for Third Party Claims. If any indemnified party receives written notice of (a) In the commencement of any action or proceeding or the assertion of event that any claim or demand for which an Indemnitor may be liable to an Indemnitee pursuant to this Article XI is asserted by a third party (a “Third Party Claim”), the Indemnitee shall promptly notify the Indemnitor in writing of such Third Party Claim (such notice, a “Claim Notice”). The Claim Notice shall (i) state that the Indemnitee has paid or the imposition of any penalty properly accrued Losses or assessment anticipates that it will incur liability for Losses for which indemnity may be sought under this Article VIII (a "third party claim") and such indemnified party intends Indemnitee is entitled to seek indemnity indemnification pursuant to this Article VIIIAgreement, such indemnified party shall promptly provide the indemnifying party with notice and (ii) specify in reasonable detail each individual item of such third party claim. Except Loss included in the case amount so stated, the date such item was paid or properly accrued, the basis for any anticipated liability and the nature of the breach of representation, warranty, covenant or agreement to which each such item is related and the computation of the amount to which such Indemnitee claims seeking equitable relief to be entitled hereunder. The Indemnitee shall enclose with the Claim Notice a copy of all papers served with respect to such Third Party Claim, if any, and any other documents evidencing such Third Party Claim.
(b) The Indemnitor shall have 60 days from the indemnified party, date on which the indemnifying party shall, upon acknowledgment of its obligation Indemnitor received the Claim Notice to indemnify notify the indemnified party, be entitled to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided Indemnitee that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party fails Indemnitor desires to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel of its choice and at its sole cost and expense. If the Indemnitor assumes the defense of such claim in accordance herewith: (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of such Third Party Claim, but the Indemnitor shall control the investigation, defense and settlement thereof; (ii) the Indemnitee shall not file any papers or consent to the entry of any third party claim judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnitor; and (iii) the Indemnitor shall not consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim to the extent such judgment or settlement provides for equitable relief without the prior written consent of the Indemnitee. The parties shall use commercially reasonable efforts to minimize Losses from Third Party Claims, act in good faith in responding to, defending against, settling or otherwise dealing with such claims, and cooperate in any such defense and give each other reasonable access to and copies of information, records and documents relevant thereto. Whether or not the Indemnitor has assumed the defense of such Third Party Claim, the Indemnitor will not be obligated to indemnify the Indemnitee hereunder with respect to any settlement entered into or any judgment consented to without the Indemnitor’s prior written consent.
(c) If the Indemnitor does not assume the defense of such Third Party Claim within twenty (20) 60 days after of receipt of the Claim Notice, the Indemnitee will be entitled to assume such defense, at its sole cost and expense (or, if the Indemnitee incurs a Loss with respect to the matter in question for which the Indemnitee is entitled to indemnification pursuant to Sections 11.2 or 11.3, as applicable, at the expense of the Indemnitor), upon delivery of notice thereof from to such effect to the indemnified partyIndemnitor; provided, such indemnified party however, that: the Indemnitor (i) shall have the right to undertake participate in the defense or settlement of such third party claim at the expense and for the account of the indemnifying party. The indemnifying party Third Party Claim at its sole cost and expense, but the Indemnitee shall control the investigation, defense and settlement thereof; (ii) may at any time thereafter assume defense of the Third Party Claim, in which event the Indemnitor shall bear the reasonable fees, costs and expenses of the Indemnitee’s counsel incurred prior to the assumption by the Indemnitor of defense of the Third Party Claim; and (iii) shall not settle be obligated to indemnify the Indemnitee hereunder for any third party claim the defense settlement entered into or settlement of which is controlled by it any judgment consented to without the indemnified party's Indemnitor’s prior written consent, unless .
(d) This Section 11.4 shall not apply to any claim in respect of any Tax the terms procedures for which are governed by Section 8.5 of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claimthis Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (PAS, Inc.)
Indemnification Procedure for Third Party Claims. If any indemnified In the event a party seeking indemnification (an "Indemnitee") receives written notice of the commencement of any action or proceeding or proceeding, the assertion of any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under pursuant to this Article VIII VII (a "third party claimThird Party Claim") ), and such indemnified party Indemnitee intends to seek indemnity pursuant to this Article VIIIVII, such indemnified party the Indemnitee shall promptly provide the indemnifying party (the "Indemnitor") with notice of such third party action, proceeding, claim. Except in the case of claims seeking equitable relief from the indemnified party, the indemnifying party shall, upon acknowledgment of its obligation to indemnify the indemnified party, be entitled to participate in or, at its option, assume the defense penalty or settlement of such third party claimassessment. The defense or settlement Indemnitor shall be conducted through counsel selected have the right, by giving notice to the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party fails to assume the defense or settlement of any third party claim Indemnitee within twenty (20) days after receipt of notice thereof from the indemnified partyIndemnitee of a Third Party Claim, such indemnified party shall at its expense, to defend against, negotiate, settle or otherwise deal with any claim with respect to which it is the Indemnitor and to have the right Indemnitee represented by counsel reasonably satisfactory to undertake the Indemnitee, selected by the Indemnitor; provided that the Indemnitee may participate in any proceeding with counsel of its choice at its expense. The Indemnitor may not enter into a settlement of any Third Party Claim without the consent of the Indemnitee unless such settlement requires no more than a monetary payment for which the Indemnitee has been fully paid. In the event the Indemnitee is controlling the defense or of any Third Party Claim, the Indemnitor may participate in such defense and settlement of such third party claim at the expense through counsel chosen by it and for the account of the indemnifying party. The indemnifying party Indemnitee shall not settle any third party claim Third Party Claim without the defense consent of the Indemnitor, which consent shall not be unreasonably withheld. The parties will cooperate fully with each other in connection with the defense, negotiation or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claimThird Party Claim.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. If In the event that subsequent to the Closing any indemnified party Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity that is not a party to this Agreement or the assertion an Affiliate of a party to this Agreement (including, but not limited to any claim by a third party domestic or the imposition of any penalty foreign court or assessment for which indemnity may be sought under this Article VIII Governmental Authority, federal, state or local) (a "third party claimThird Party Claim") and against such indemnified Indemnified Party, against which a party intends to seek indemnity pursuant to this Article VIIIAgreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such indemnified party claim to the Indemnifying Party within 60 days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall promptly provide have the indemnifying party with right, upon written notice to the Indemnified Party (the "Defense Notice") within 30 days after receipt from the Indemnified Party of notice of such third party claim. Except , which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the case name of claims seeking equitable relief from the indemnified partyIndemnified Party; provided, however, that the indemnifying party shall, upon acknowledgment of its obligation Indemnified Party shall have the right to indemnify approve the indemnified party, be entitled to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified partyDefense Counsel, which approval shall not be unreasonably withheld, and in the indemnified party event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within 10 days after the Defense Notice is provided, then the Indemnifying Party shall fully cooperate with the indemnifying party in connection therewithpropose an alternate Defense Counsel, provided that the indemnified party which shall be entitled at any time subject again to employthe Indemnified Party's approval. If the parties still fail to agree on Defense Counsel, then, at its own expensesuch time, separate counsel they shall mutually agree in good faith on a procedure to represent it. In determine the event that the indemnifying party fails to assume the defense or settlement of any third party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party shall have the right to undertake the defense or settlement of such third party claim at the expense and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claim.Defense
Appears in 1 contract
Samples: Asset Contribution and Exchange Agreement (Novamed Inc)
Indemnification Procedure for Third Party Claims. If any indemnified party (a) In the event that, subsequent to the Closing, an Indemnified Party receives written notice of the commencement assertion of a Third Party Claim against such Indemnified Party, the Indemnified Party shall promptly give written notice thereof together with a statement of any action available information regarding such claim to the Indemnifying Party; provided that no delay in or proceeding or the assertion of any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim") and failure to give such indemnified party intends to seek indemnity notice pursuant to this Article VIIISection 14.5(a) will adversely affect any of the other rights or remedies that such Indemnified Party has under this Agreement, or alter or relieve the Indemnifying Party’s obligation to indemnify such indemnified party Indemnified Party, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall promptly provide have the indemnifying party with right upon written notice to the Indemnified Party, within thirty (30) days after receipt from the Indemnified Party of notice of such third party claim. Except in the case of claims seeking equitable relief from the indemnified party, the indemnifying party shall, upon acknowledgment of its obligation claim to indemnify the indemnified party, be entitled to participate in or, conduct at its option, assume expense the defense or settlement of against such third party claim. The defense or settlement shall be conducted through claim in its own name with counsel selected by the indemnifying party Indemnifying Party and approved not reasonably objected to by the indemnified partyIndemnified Party. In the event that the Indemnifying Party elects to conduct the defense of the subject claim, the Indemnified Party will use Reasonable Efforts to cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which approval consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall hold in confidence all such information provided by the Indemnified Party under this Section 14.5(a) on the terms and subject to the indemnified party conditions contained in the Confidentiality Agreement or Section 9.4, as applicable. Notwithstanding the foregoing, the Indemnifying Party shall fully cooperate with not have the indemnifying party in connection therewithright of access to information of the Indemnified Party relating to any information the disclosure of which would jeopardize any legal privilege or work-product privilege available to the Indemnified Party or any of its Affiliates relating to such information. Notwithstanding the foregoing, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In Indemnifying Party will not have the event that the indemnifying party fails right to assume the defense or settlement of any third Third Party Claim or will cease to defend against such claim, if (i) injunctive or other equitable relief or relief for other than money damages that the Indemnified Party reasonable determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, is sought and could be imposed against the Indemnified Party, (ii) in the event the Third Party Claim were to be unfavorably decided, it would reasonably be likely to lead to Losses, liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder (other than to the extent of the Deductible) or Losses in excess of amounts then-held in the Escrow Account, (iii) at the time of the assumption and thereafter, the Indemnifying Party fails to demonstrate its ability to conduct the investigation, defense or prosecution actively and diligently, (iv) the Third Party Claim relates to or arises in connection with any criminal or quasicriminal Action, or (v) the Indemnifying Party is also a party or has an interest in such Third Party Claim, which interest conflicts with the interests of the Indemnified Party based on the advice of outside legal counsel. If an offer is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 14.5(a) only upon the prior written consent of the Indemnified Party, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give prompt written notice to the Indemnified Party to that effect. Notwithstanding the foregoing, no consent of the Indemnified Party shall be required for the Indemnifying Party to settle any Third Party Claim if (A) such settlement offer (1) requires only the payment of money damages for which the Indemnified Party is entitled to full indemnification and does not impose any continuing obligation on any Indemnified Party or its Affiliates, (2) provides, as a condition precedent thereto, a binding, complete, irrevocable and unconditional release from all Losses with respect to the subject matter thereof in favor of all Indemnified Parties that are a party to such Third Party Claim and their respective Affiliates and (3) does not require any Indemnified Party or its Affiliates to (x) admit any wrongdoing or acknowledge any rights of any Person or (y) waive any rights that the Indemnified Party may have against the Person making the Third Party Claim, (B) where such Buyer Indemnified Party is the Indemnified Party, the Sellers’ Representative agrees in writing that the entire amount of such proposed settlement constitutes Losses that are from the Escrow Account then available for distribution, subject to the other provisions of this Agreement and (C) the amount of such proposed settlement will not exceed the limitations contained in this Article XIV.
(b) In the event that, subsequent to the Closing, an Indemnified Party becomes aware of a claim within twenty for indemnification pursuant to Section 14.3 that would not be a Third Party Claim (20a “Direct Claim”), the Indemnified Party shall promptly give written notice thereof together with a statement of any available information regarding such Direct Claim to the Indemnifying Party; provided that no delay in or failure to give such notice pursuant to this Section 14.5(b) will adversely affect any of the other rights or remedies that such Indemnified Party has under this Agreement, or alter or relieve the Indemnifying Party’s obligation to indemnify such Indemnified Party, except to the extent the Indemnifying Party is materially prejudiced thereby. Upon confirmed receipt by the Indemnifying Party of a notice of a Direct Claim, the Indemnifying Party shall have thirty (30) days after from the receipt of notice thereof from such Claim Notice to notify the indemnified partyIndemnified Party that the Indemnifying Party disputes such Direct Claim, such indemnified party shall have the right to undertake the defense or settlement of such third party claim at the expense and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability reserves rights with respect to such third party claimDirect Claim pending more information with respect thereto. If the Indemnifying Party does not notify the Indemnified Party of such dispute or reservation of rights within such initial thirty (30) day period, then the Indemnified Party may provide a subsequent written notice to the Indemnifying Party (a “Demand Notice”), provided that any such Demand Notice shall reassert the Direct Claim and assert the Indemnified Party’s good faith estimate of the Losses with respect to such Direct Claim. Upon confirmed receipt by the Indemnifying Party of a Demand Notice, if the Indemnifying Party shall not have notified the Indemnified Party that the Indemnifying Party disputes such Direct Claim, or reserves rights with respect to such Direct Claim pending more information with respect thereto, within thirty (30) days from such confirmed receipt of such Demand Notice, then the amount of such Direct Claim shall be deemed, conclusively, a liability of the Indemnifying Party subject to the limitations set forth in this Article XIV. If the Indemnifying Party does timely notify the Indemnified Party of such dispute, or reservation of rights, then the Indemnified Party shall have thirty (30) days to respond in a written statement to the objection of the Indemnifying Party. If after such thirty (30) day period there remains a dispute as to any such Direct Claim, then the Indemnified Party and the Indemnifying Party shall attempt in good faith for a period not to exceed thirty (30) additional calendar days to agree upon the rights of the respective Parties with respect to such Direct Claim. If the Parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by the Indemnifying Party and the Indemnified Party. If the Parties do not agree within such additional thirty (30) day period, then the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Article XIV.
Appears in 1 contract
Samples: Transaction Agreement (Nord Anglia Education, Inc.)
Indemnification Procedure for Third Party Claims. If any (a) In the event that an indemnified party receives written notice of (the commencement of any action or proceeding or the assertion “Indemnitee”) becomes aware of any claim by a third party or the imposition demand, or other circumstance or state of facts which could reasonably give rise to any penalty claim or assessment demand, for which indemnity a party may be sought become obligated under Section 8.2 or 8.3, as applicable, (such party, the “Indemnitor”) to indemnify the Indemnitee (a “Third Party Claim”), the Indemnitee shall as soon as practicable notify the Indemnitor in writing of such Third Party Claim (“Notice of Claim”). Delay or failure in so notifying the Indemnitor shall relieve the Indemnitor of its obligations under this Article VIII (a "third party claim") and such indemnified party intends only to seek indemnity pursuant to this Article VIIIthe extent, such indemnified party shall promptly provide if at all, that the indemnifying party with notice Indemnitor is prejudiced by reason of such third party claim. Except in the case of claims seeking equitable relief delay or failure.
(b) The Indemnitor will have 20 days from the indemnified party, date on which the indemnifying party shall, upon acknowledgment Indemnitor received the Notice of its obligation Claim to indemnify notify the indemnified party, be entitled Indemnitee that the Indemnitor desires to participate in or, at its option, assume the defense or settlement prosecution of such third party claim. The defense or settlement shall be conducted through Third Party Claim and any litigation resulting therefrom with counsel selected by the indemnifying party of its choice and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent itsole cost and expense (a “Third Party Defense”). In If the event that the indemnifying party Indemnitor fails to assume the defense or settlement of any third such Third Party Claim within 20 days of the delivery of the Notice of Claim, the Indemnitee may assume control of the defense of the claim. In all cases, the party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party shall have without the right to undertake control the defense or settlement of such third party claim may retain separate co-counsel at the its sole cost and expense and for participate in the account defense of the indemnifying Third Party Claim. Notwithstanding anything to the contrary contained herein, neither the Indemnitee nor the Indemnitor will file any papers or consent to the entry of any judgment or enter into any settlement with respect to a Third Party Claim without the prior written consent of the other party. The indemnifying party shall not settle parties will use commercially reasonable efforts to minimize Losses from Third Party Claims and will act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The parties will also cooperate in any third party claim the such defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and give each other reasonable access to all liability with respect to such third party claiminformation relevant thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Phoenix Technologies LTD)
Indemnification Procedure for Third Party Claims. If In the event that any indemnified party Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or the assertion an affiliate of any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under to this Article VIII Agreement (a "third party claimThird Party Claim") and against such indemnified Indemnified Party, against which a party intends to seek indemnity pursuant to this Article VIIIAgreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such indemnified party claim to the Indemnifying Party within five business days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall promptly provide have the indemnifying party with right, upon written notice to the Indemnified Party (the "Defense Notice") within five business days after receipt from the Indemnified Party of notice of such third party claim. Except , which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the case name of claims seeking equitable relief from the indemnified partyIndemnified Party; provided, however, that the indemnifying party shall, upon acknowledgment of its obligation Indemnified Party shall have the right to indemnify approve the indemnified party, be entitled to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified partyDefense Counsel, which approval shall not be unreasonably withheldwithheld or delayed, and in the indemnified party event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within 10 days after the Defense Notice is provided, then the Indemnifying Party shall fully cooperate with the indemnifying party in connection therewithpropose an alternate Defense Counsel, provided that the indemnified party which shall be entitled at any time subject again to employthe Indemnified Party's approval which approval shall not be unreasonably withheld or delayed. If the parties still fail to agree on the Defense Counsel, then, at its own expensesuch time, separate counsel to represent it. the Indemnifying Party shall determine the Defense Counsel.
(a) In the event that the indemnifying party fails Indemnifying Party shall fail to assume give the Defense Notice within a thirty day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense and to compromise and settle the claim without prior consent of the Indemnifying Party.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over the defense and settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party; the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing and at its sole expense. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder.
(d) If an Indemnified Party refuses to consent to a bona fide offer of settlement which provides for a full release of the Indemnified Party and its affiliates, if parties, and solely for a monetary payment which the Indemnifying Party wishes to accept, the Indemnified Party may continue to pursue such matter, free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such an event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(e) Notwithstanding clause (b) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any third party claim within twenty (20i) days after receipt that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of notice thereof from the indemnified partyIndemnified Party or (iv) if such claim would impose liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such indemnified party shall the Indemnifying Party will still have all of its obligations hereunder provided that the right to undertake Indemnified Party will not settle the defense subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld or delayed.
(f) Any final judgment entered or settlement of such third party claim at agreed upon in the expense and for manner provided herein shall be binding upon all parties and, if the account dispute in question would impose liability on the part of the indemnifying party. The indemnifying party Indemnifying Party under this Article VIII, shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder.
(g) A failure by an Indemnified Party to give timely, complete or accurate notice as provided in this Section 8.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such third failure, any party claimentitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
Appears in 1 contract
Samples: Merger Agreement (Paradise Music & Entertainment Inc)
Indemnification Procedure for Third Party Claims. If In the event that subsequent to the Closing any indemnified party person or entity entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or the assertion an affiliate of a party to this Agreement (including, but not limited to any claim by a third party domestic or the imposition of any penalty foreign court or assessment for which indemnity may be sought under this Article VIII Governmental Body, federal, state or local) (a "third party claimThird Party Claim") and against such indemnified Indemnified Party, against which a party intends to seek indemnity pursuant to this Article VIIIAgreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information (other than privileged information) regarding such indemnified party claim to the Indemnifying Party within thirty (30) business days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall promptly provide have the indemnifying party with right, upon written notice to the Indemnified Party (the "Defense Notice") within fifteen days (15) after receipt from the Indemnified Party of notice of such third party claim. Except , which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the case name of claims seeking equitable relief from the indemnified partyIndemnified Party; provided, however, that the indemnifying party shall, upon acknowledgment of its obligation Indemnified Party shall have the right to indemnify approve the indemnified party, be entitled to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified partyDefense Counsel, which approval shall not be unreasonably withheldwithheld or delayed, and in the indemnified party event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, then the Indemnifying Party shall fully cooperate with the indemnifying party in connection therewithpropose an alternate Defense Counsel, provided that the indemnified party which shall be entitled at any time subject again to employthe Indemnified Party's approval which approval shall not be unreasonably withheld or delayed. If the parties still fail to agree on the Defense Counsel, then, at its own expensesuch time, separate counsel they shall mutually agree in good faith on a procedure to represent it. determine the Defense Counsel.
(a) In the event that the indemnifying party fails Indemnifying Party shall fail to assume give the Defense Notice within said 15 day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense in good faith and to compromise and settle the claim in good faith without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all reasonable costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over said defense settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder.
(d) If an Indemnified Party refuses to consent to a bona fide offer of settlement which provides for a full release of the Buyer and its affiliates and solely for a monetary payment which the Indemnifying Party wishes to accept, the Indemnified Party may continue to pursue such matter, free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(e) Notwithstanding paragraph (b) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any third party claim within twenty (20i) days after receipt that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of notice thereof from the indemnified partyIndemnified Party, or (iv) to the extent such indemnified party shall claim imposes liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder (including, without limitation, a liability which may exceed the Cap). In such an event, the Indemnifying Party will still have all of its obligations hereunder provided that the right to undertake Indemnified Party will not settle the defense subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld.
(f) Any final judgment entered or settlement of such third party claim at agreed upon in the expense manner provided herein shall be binding upon the Indemnifying Party, and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder.
(g) A failure by an Indemnified Party to give timely, complete or accurate notice as provided in this Section 6.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such third failure, any party claimentitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. If (a) In the event that any indemnified party Person entitled to indemnification under this Agreement (an “Indemnified Party”) receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a Party to this Agreement or the assertion an Affiliate of any claim by a third party Party to this Agreement (a “Third Party Claim”) against such Indemnified Party, with respect to which a Party to this Agreement is or the imposition of any penalty or assessment for which indemnity may be sought required to provide indemnification under this Article VIII Agreement (a "third party claim") and such indemnified party intends an “Indemnifying Party”), the Indemnified Party shall give written notice to seek indemnity pursuant to this Article VIII, such indemnified party shall the Indemnifying Party as promptly provide the indemnifying party with notice as practicable after learning of such third party claim, and in no event longer than fifteen (15) days. Except in the case of claims seeking equitable relief from the indemnified partySubject to Section 7.5(d), the indemnifying party shallIndemnifying Party shall have the right, upon acknowledgment of its obligation written notice to indemnify the indemnified party, be entitled to participate in or, at its option, assume Indemnified Party (the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party fails to assume the defense or settlement of any third party claim “Defense Notice”) within twenty (20) days after receipt from the Indemnified Party of notice thereof from of such claim, which notice by the indemnified partyIndemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such indemnified party claim in its own name, or if necessary in the name of the Indemnified Party, which such counsel shall be reasonably acceptable to the Indemnified Party. The assumption of the defense of any Third Party Claim by the Indemnifying Party shall not constitute an admission of responsibility to indemnify the Indemnified Party.
(b) In the event that the Indemnifying Party shall fail to give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject Third Party Claim, and in such event the Indemnified Party shall have the right to undertake conduct such defense. The Indemnified Party may not settle such claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Subject to Section 7.5(d), in the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject Third Party Claim, the Indemnifying Party shall have the right to conduct such defense. The Indemnifying Party may not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to monitor the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of such third party any claim at if (i) the expense and claim for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which indemnification is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such a criminal or quasi-criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party, (iii) the third party asserting such claim is a supplier, vendor, employee, client or customer of the Business or the Indemnified Party or any of its Affiliates, (iv) the Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim, (v) the Indemnified Party reasonably believes that the amount of the claim exceeds either (A) the amount that the Indemnifying Party is obligated to indemnify the Indemnified Party for pursuant to this Agreement or (B) the remaining amount of the Holdback Amount (if the Indemnifying Party is Seller, any of the Seller Principals or Xx. Xxxxxx), (vi) the Indemnified Party reasonably believes that, if successful, the claim would set a precedent that would materially interfere with, or have a material effect on, the business, business relationships or financial condition of the Indemnified Party or its Affiliates, (vii) the claim is with respect to Taxes or Intellectual Property, or (viii) the claim seeks an injunction or other equitable relief against the Indemnified Party or any of its Affiliates; provided, that the Indemnified Party shall have the right to settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, further, however, that, if the Indemnifying Party is Seller, any of the Seller Principals or Xx. Xxxxxx, the Indemnified Party shall have the right to settle any claim (1) that alleges Infringement or that is primarily related to a breach of the representations and warranties in Section 3.12 and (2) where the Indemnified Party reasonably believes that the amount of the claim exceeds either (A) the amount that the Indemnifying Party is obligated to indemnify the Indemnified Party for pursuant to this Agreement or (B) the remaining amount of the Holdback Amount.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. If any indemnified party receives written notice Except as ------------------------------------------------ otherwise provided herein, in the event of the commencement initiation of any action or legal proceeding or the assertion of any claim against an indemnified Party by a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim") and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide the indemnifying party with notice of such third party claim. Except in the case of claims seeking equitable relief from the indemnified partyThird Party, the indemnifying party shall, upon acknowledgment Party shall have the absolute right after the receipt of its obligation to indemnify the indemnified party, be entitled to participate in ornotice, at its option, assume the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party option and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate to be represented by counsel of its choice, and to represent it. In the event defend against, negotiate, settle (subject to Section 9.8) or ----------- otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, -------- ------- that the indemnifying party fails indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to assume cooperate fully with each other in connection with the defense defense, negotiation or settlement (subject to Section 9.8) of any third party such legal proceeding, claim within twenty (20) days after receipt of notice thereof from ----------- or demand. To the extent the indemnifying Party elects not to defend such proceeding, claim or demand, and the indemnified partyParty defends against or otherwise deals with any such proceeding, such claim or demand, the indemnified party shall have the right to undertake the defense or settlement of such third party claim Party may retain counsel, at the expense and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim Party, and control the defense or settlement of which is controlled by it such proceeding. If the indemnifying Party elects not to defend any such proceeding, the indemnified Party may settle, subject to Section 9.8, such proceeding without the consent of the indemnifying Party, ----------- and the indemnifying Party shall indemnify and hold the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability Party harmless with respect to any loss, liability, claim, obligation, damage and expense occasioned by such third party claimsettlement.
Appears in 1 contract
Samples: Product Acquisition Agreement (Kv Pharmaceutical Co /De/)
Indemnification Procedure for Third Party Claims. If a. If, following the Closing, any indemnified party Person that is or may be entitled to indemnification under this Agreement (“Indemnified Party”) receives written notice of the assertion or commencement of any action action, suit, claim, or other legal proceeding made or the assertion brought by any Person who is not a party to this Agreement or an Affiliate of any claim by a third party to this Agreement (a “Third-Party Claim”) against such Indemnified Party with respect to which a Party is or the imposition of any penalty or assessment for which indemnity may be sought required to provide indemnification under this Article VIII Agreement (an “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations with respect thereto, except and only to the extent that the Indemnifying Party is actually prejudiced as a "third party claim") and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide the indemnifying party with notice result of such third party claimfailure. Except Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the case estimated amount, if reasonably practicable, of claims seeking equitable relief from the indemnified partyLoss that has been sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate, at its own cost and expense, in or, by giving written notice to the indemnifying party shallIndemnified Party and subject to Section 11.5(d), upon acknowledgment of its obligation provided that the Indemnifying Party agrees in writing to indemnify the indemnified partyIndemnified Party for any Losses that may arise therefrom (subject to all applicable limitations on indemnity set forth in this Agreement), be entitled to assume and control the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall reasonably cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 11.5(b) and (d), (i) it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal, or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party and (ii) the Indemnified Party shall have the right, at its own cost and expense, to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement shall be conducted through any Third -Party Claim with counsel selected by it subject to the indemnifying party Indemnifying Party’s right to control the defense thereof (provided that the Indemnified Party may seek indemnity in accordance with the terms hereof for the reasonable costs of such separate counsel if the Indemnified Party reasonably determines that an actual conflict of interest of the Indemnifying Party’s counsel exists on a material issue with respect to such defense). If the Indemnifying Party elects not to compromise or defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party may, subject to Section 11.5(b), pay, compromise, settle and approved by defend such Third-Party Claim in its sole discretion. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the indemnified defense of any Third-Party Claim, including making available (subject to the provisions of this Agreement) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
b. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which approval consent shall not be unreasonably withheld, conditioned or delayed), consent to a settlement, compromise or discharge of, or the entry of any judgment arising from, any Third-Party Claim, unless such settlement, compromise, discharge or entry of any judgment (i) does not involve any finding or admission of any violation of Law or admission of any wrongdoing by the Indemnified Party and (ii) contains, as a condition of any settlement, compromise, discharge, entry of judgment (if applicable), or other resolution, an unconditional release of each Indemnified Party from any and all Liabilities in respect of such Third-Party Claim.
c. Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be entitled to assume or control (including with respect to settlement thereof), and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party Indemnified Party shall be entitled to maintain or assume sole control over (including with respect to the settlement thereof) (at any time to employthe Indemnifying Party’s sole expense), at its own expense, separate counsel to represent it. In the event that the indemnifying party fails to assume the defense or settlement of any third party Third-Party Claim if:
i. such Indemnifying Party has failed or is failing to diligently contest such Third -Party Claim;
ii. the Indemnified Party (if a Buyer Indemnified Party) reasonably believes that potential Losses relating to such claim within twenty could exceed the maximum amount that such Indemnified Party would then be entitled to recover under this Article XI;
iii. there exists or would, or could reasonably be expected to, exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party in such proceeding;
iv. such Third-Party Claim involves any criminal or quasi-criminal actions or allegations of any criminal or quasi-criminal conduct, or involves any claims for specific performance, an injunction or any other equitable relief;
v. the Indemnified Party elects to pursue one or more defenses or counterclaims available to it that are inconsistent with one or more of those that are being pursued by the Indemnifying Party in respect of such Third-Party Claim or any Proceeding relating thereto; or
vi. such Third-Party Claim relates to a material regulatory matter, material customer or supplier of the Buyer or any Acquired Company or any of their respective Subsidiaries or any Acquired Business or any officer or employee thereof or would otherwise be material to the business of the Buyer or any Acquired Company or any Acquired Business on an ongoing basis.
d. Any claim by an Indemnified Party on account of a Loss which does not result from a Third-Party Claim (20a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is actually prejudiced as a result of such failure as a result of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall, if available, include copies of all documents related to the matter giving rise to such Direct Claim and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such notice thereof from to respond in a writing received by the indemnified partyIndemnified Party to such Direct Claim that the Indemnifying Party disputes its Liability to the Indemnified Party hereunder. If the Indemnifying Party does not notify the Indemnified Party within such 30-day period that the Indemnifying Party disputes its Liability to the Indemnified Party hereunder, such indemnified party claim specified by the Indemnified Party in such notice shall have be conclusively deemed a Liability of the right to undertake Indemnifying Party hereunder and the defense or settlement Indemnifying Party shall pay the amount of such third party claim at Liability to the expense and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claimIndemnified Party on demand.
Appears in 1 contract
Samples: Securities and Asset Purchase Agreement (Tilray Brands, Inc.)
Indemnification Procedure for Third Party Claims. If In the event that subsequent to the Closing any indemnified party person or entity entitled to indemnification under this Agreement (an “Indemnified Party”) asserts a claim for indemnification or receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an Affiliate of such a party (including, but not limited to any domestic or foreign court or Governmental Authority, federal, state or local) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the assertion Indemnified Party shall give written notice together with a statement of any available information regarding such claim by a third party to the Indemnifying Party within thirty (30) days after learning of such claim (or the imposition of any penalty or assessment for which indemnity within such shorter time as may be sought under this Article VIII necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (a "third party claim"the “Defense Notice”) and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide within thirty (30) days after receipt from the indemnifying party with Indemnified Party of notice of such third party claim. Except , (which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”)), to conduct at its expense the defense against such claim in its own name, or if necessary in the case name of claims seeking equitable relief from the indemnified partyIndemnified Party; provided, however, that the indemnifying party shallIndemnified Party shall have the right to approve the Defense Counsel and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, upon acknowledgment of its obligation to indemnify then the indemnified partyIndemnifying Party shall propose an alternate Defense Counsel, be entitled to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement which shall be conducted through counsel selected by subject again to the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. Indemnified Party’s approval.
A. In the event that the indemnifying party fails Indemnifying Party shall fail to assume give such notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
B. In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be reasonably withheld or delayed. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party or its Affiliates, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party or its Affiliates for which the Indemnified Party is not entitled to indemnification hereunder. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any third party claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or its Affiliates (and the cost of such defense shall constitute a Loss for which the Indemnified Party is entitled to indemnification hereunder). If a firm decision is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 9.4B, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within twenty thirty (2030) calendar days after its receipt of notice thereof from such notice, the indemnified partyIndemnified Party may continue to contest or defend such Third Party Claim and, in such indemnified party shall have event, the right to undertake the defense or settlement of such third party claim at the expense and for the account maximum liability of the indemnifying party. The indemnifying party shall Indemnifying Party as to such Third Party Claim will not settle any third party claim exceed the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms amount of such settlement offer, plus costs and expenses paid or compromise releases incurred by the Indemnified Party through the end of such indemnified party from any thirty (30) day period.
C. Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and all liability shall conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder.
D. A failure by an Indemnified Party to give timely, complete or accurate notice as provided in Section 9.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such third failure, any party claimentitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
E. The Indemnifying Party shall be subrogated to the Indemnified Party’s rights of recovery to the extent of any Loss satisfied by the Indemnifying Party. The Indemnified Party shall execute and deliver such instruments and papers as are necessary to assign such rights and assist in the exercise thereof, including access to books and records of the Company.
Appears in 1 contract
Samples: Purchase and Exchange Agreement (Halo Technology Holdings, Inc.)
Indemnification Procedure for Third Party Claims. If In the event that subsequent to the Closing any indemnified party person or entity entitled to indemnification under this Agreement (an “Indemnified Party”) asserts a claim for indemnification or receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement or an Affiliate of such a party (including, but not limited to any domestic or foreign court or Governmental Authority, federal, state or local) (a “Third Party Claim”) against such Indemnified Party, against which a party to this Agreement is required to provide indemnification under this Agreement (an “Indemnifying Party”), the assertion Indemnified Party shall give written notice together with a statement of any available information regarding such claim by a third party to the Indemnifying Party within thirty (30) days after learning of such claim (or the imposition of any penalty or assessment for which indemnity within such shorter time as may be sought under this Article VIII necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (a "third party claim"the “Defense Notice”) and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide within thirty (30) days after receipt from the indemnifying party with Indemnified Party of notice of such third party claim. Except , [which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim (“Defense Counsel”)], to conduct at its expense the defense against such claim in its own name, or if necessary in the case name of claims seeking equitable relief from the indemnified partyIndemnified Party; provided, however, that the indemnifying party shallIndemnified Party shall have the right to approve the Defense Counsel and in the event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within ten (10) days after the Defense Notice is provided, upon acknowledgment of its obligation to indemnify then the indemnified partyIndemnifying Party shall propose an alternate Defense Counsel, be entitled to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement which shall be conducted through counsel selected by subject again to the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. Indemnified Party’s approval.
A. In the event that the indemnifying party fails Indemnifying Party shall fail to assume give such notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
B. In the event that the Indemnifying Party does elect to conduct the defense of the subject claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by it, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing, provided that the Indemnified Party shall have the right to compromise and settle the claim only with the prior written consent of the Indemnifying Party, which consent shall not be reasonably withheld or delayed. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party or its Affiliates, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party or its Affiliates for which the Indemnified Party is not entitled to indemnification hereunder. The Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any third party claim to the extent that claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or its Affiliates (and the cost of such defense shall constitute a Loss for which the Indemnified Party is entitled to indemnification hereunder). If a firm decision is made to settle a Third Party Claim, which offer the Indemnifying Party is permitted to settle under this Section 9.4B, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within twenty thirty (2030) calendar days after its receipt of notice thereof from such notice, the indemnified partyIndemnified Party may continue to contest or defend such Third Party Claim and, in such indemnified party shall have event, the right to undertake the defense or settlement of such third party claim at the expense and for the account maximum liability of the indemnifying party. The indemnifying party shall Indemnifying Party as to such Third Party Claim will not settle any third party claim exceed the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms amount of such settlement offer, plus costs and expenses paid or compromise releases incurred by the Indemnified Party through the end of such indemnified party from any thirty (30) day period.
C. Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and all liability shall conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder.
D. A failure by an Indemnified Party to give timely, complete or accurate notice as provided in Section 9.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such third failure, any party claimentitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
E. The Indemnifying Party shall be subrogated to the Indemnified Party’s rights of recovery to the extent of any Loss satisfied by the Indemnifying Party. The Indemnified Party shall execute and deliver such instruments and papers as are necessary to assign such rights and assist in the exercise thereof, including access to books and records of the Company.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. If In connection with any indemnified party receives claim of a Third Party for which a Pfizer Indemnitee or Licensee Indemnitee (either of the foregoing, the “Indemnified Party”) seeks indemnification from Licensee or Pfizer, as applicable (the “Indemnifying Party”), pursuant to this Agreement, the Indemnified Party shall: (a) give the Indemnifying Party prompt written notice of such claim, the commencement section(s) of this Agreement that form the basis of the claim for indemnification, the amount or the estimated amount of damages sought under such claim to the extent then ascertainable and, to the extent practicable, any other material details pertaining thereto; provided, however, that failure to provide such notice or to include the foregoing information shall not relieve the Indemnifying Party from its liability or obligation hereunder, except to the extent of any action or proceeding or the assertion of any claim by material prejudice as a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim") and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide the indemnifying party with notice direct result of such third party claim. Except in failure; (b) cooperate with the case of claims seeking equitable relief from the indemnified party, the indemnifying party shall, upon acknowledgment of its obligation to indemnify the indemnified party, be entitled to participate in orIndemnifying Party, at its optionthe Indemnifying Party’s expense, assume in connection with the defense or and settlement of such third party claim. The ; and (c) permit the Indemnifying Party to assume control of the defense or and settlement shall be conducted through counsel selected by of such claim at the indemnifying party Indemnifying Party’s sole cost and approved by expense; provided, however, that the indemnified partyIndemnifying Party may not settle such claim without the Indemnified Party’s prior written consent, which approval shall not be unreasonably withheld, conditioned or delayed, unless such settlement (x) provides for the payment by the Indemnifying Party of money as sole relief for the claimant (other than as contemplated by the Deductible), (y) results in the full and general release of the indemnified party Indemnified Party from all liabilities arising or resulting from such claim, and (z) involves no finding or admission of any violation of Applicable Law or the rights of any Person and does not have an effect on any other claims that may be made against the Indemnified Party. If the Indemnifying Party does not assume control of the defense and settlement of such claim, then the Indemnified Party shall fully cooperate control the defense and settlement of such claim with counsel of its selection, at the indemnifying party Indemnifying Party’s expense. Either the Indemnified Party (if such claim is controlled by the Indemnifying Party) or the Indemnifying Party (if such claim is controlled by the Indemnified Party) shall have the right to participate (but not control) and be represented in connection therewith, provided that the indemnified party shall be entitled at any time to employ, suit or action by advisory counsel of its selection and at its own expense. Notwithstanding the foregoing, if the Indemnifying Party assumes control of the defense and settlement of such claim, the Indemnified Party will have the right to employ separate counsel, at the Indemnifying Party’s expense, Table of Contents in connection with the defense and settlement of such claim if: (i) there are or may be legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (ii) in the reasonable opinion of counsel to represent itthe Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and Indemnifying Party that would make such separate representation advisable. In the event that the indemnifying party fails to assume Indemnified Party controls the defense or settlement of any third party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party shall have the right to undertake the defense or and settlement of such third party claim at claim, the expense and for the account of the indemnifying party. The indemnifying party shall Indemnified Party may not settle any third party such claim the defense or settlement of which is controlled by it without the indemnified party's Indemnifying Party’s prior written consent, unless the terms of such settlement which shall not be unreasonably withheld, conditioned or compromise releases such indemnified party from any and all liability with respect to such third party claimdelayed.
Appears in 1 contract
Samples: License Agreement (ARYA Sciences Acquisition Corp II)
Indemnification Procedure for Third Party Claims. If any indemnified party receives written notice of the commencement of any action or proceeding or the assertion of any claim by a third party or the imposition of any penalty or assessment for of or which indemnity may be sought under this Article VIII X (a "third party claim"“Third Party Claim”) and such indemnified party intends to seek indemnity pursuant to this Article VIIIX, such indemnified party shall promptly provide the indemnifying party with notice of such third Third Party Claim (provided that any delay in providing such notice shall not affect the indemnification obligations of the indemnifying party hereunder except to the extent the indemnifying party demonstrates that such delay prejudiced such indemnifying party’s ability to successfully defend the matter giving rise to the claim). Except in the case of claims seeking equitable relief from the indemnified party, the The indemnifying party shall, upon acknowledgment of its obligation to indemnify the indemnified party, be entitled to participate in or, at its option, assume the defense or settlement of such third party claimThird Party Claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party fails to assume the defense or settlement of any third party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party shall have the right to undertake the defense or settlement of such third party claim at the expense and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it Third Party Claim without the indemnified party's ’s prior written consent, unless which consent shall not be unreasonably conditioned, delayed or withheld; provided that if such a settlement is solely for monetary relief to be paid in full by the indemnifying party, no consent of any indemnified party shall be required. In connection with any Third Party Claim, the Parties shall use their commercially reasonable efforts to coordinate with any applicable insurance carriers and the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claimapplicable insurance policies.
Appears in 1 contract
Samples: Purchase Agreement (Rare Hospitality International Inc)
Indemnification Procedure for Third Party Claims. If any indemnified party (a) In the event that, subsequent to the Closing, an Indemnified Party receives written notice of the commencement assertion of a Third Party Claim against such Indemnified Party, the Indemnified Party shall give written notice thereof, together with a statement of any action available information regarding such claim to the Indemnifying Party within five (5) Business Days after learning of such claim (or proceeding or within such shorter time as may be necessary to give the assertion Indemnifying Party a reasonable opportunity to respond to and defend such claim). Such written notice shall describe in reasonable detail the facts constituting the basis for such Third Party Claim and the amount of the potential Losses, in each case to the extent known. The failure of the Indemnified Party to give reasonably prompt notice of any claim by a third party Third Party Claim shall not release, waive or otherwise affect the imposition Indemnifying Party’s obligations with respect thereto except to the extent that the Indemnifying Party can demonstrate that such failure has materially and irreparably prejudiced the defense of any penalty or assessment for which indemnity may be sought under this Article VIII such Third Party Claim. The Indemnifying Party shall have the right upon written notice to the Indemnified Party within ten (a "third party claim"10) and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide days after receipt from the indemnifying party with Indemnified Party of notice of such third party claim. Except , to conduct at its expense the defense against such claim in its own name, or if required in the case name of claims seeking equitable relief from the indemnified partyIndemnified Party. If the Indemnifying Party elects not to assume control, the indemnifying party shallIndemnified Party shall retain control of such Third Party Claim and the Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. The Party not controlling such Third Party Claim shall cooperate with and make available to the controlling Party such assistance and materials as may be reasonably requested by it (including copies of any summons, upon acknowledgment of complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same), and shall have the right at its obligation to indemnify the indemnified party, be entitled expense to participate in orthe defense assisted by counsel of its own choosing. The Party controlling such Third Party Claim shall keep the non-controlling Party advised of the status of such Third Party Claim and fees incurred with respect thereto, on at least a monthly basis, and shall consider in good faith recommendations made by the non-controlling Party with respect thereto.
(b) If an Indemnifying Party assumes the defense of a Third Party Claim in accordance herewith: (i) the Indemnified Party may retain separate co‑counsel at its option, assume sole cost and expense and participate in the defense of such Third Party Claim, but the Indemnifying Party shall control the investigation, defense and settlement thereof; (ii) the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnifying Party; and (iii) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement or compromise with respect to such Third Party Claim without the prior written consent of the Indemnified Party unless the judgment or settlement provides (a) solely for the payment of money by the Indemnifying Party that will be paid or reimbursed concurrent with the execution and delivery of such third party claim. The defense judgment, settlement or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified partycompromise, which approval shall not be unreasonably withheld, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided (b) that the indemnified party shall be entitled at Indemnified Party receives an unconditional release from all liability with respect to such Third Party Claim and (c) no obligation of the Indemnified Party or any time of its Affiliates to employ, at its own expense, separate counsel to represent itperform obligations or admit liability. In the event that the indemnifying Indemnifying Party does not agree in writing to accept the defense of a Third Party Claim, then the Indemnified Party shall have the right to defend against, negotiate, settle or otherwise deal with the Third Party Claim in such manner as the Indemnified party fails deems appropriate, in its sole discretion and the Indemnified Party shall be entitled to assume indemnification therefor to the extent provided for by this Article VII.
(c) If: (i) a Third Party Claim relates to or arises in connection with an Action, the object of which is to obtain an injunction, restraining order, declaratory relief or other non-monetary relief (including criminal penalties) against the Indemnified Party; (ii) the Indemnified Party reasonably concludes that, in light of actual or potential conflict of interest, it would be inappropriate for legal counsel selected by the Indemnifying Party to represent the Indemnified Party; or (iii) the Indemnified Party reasonably concludes that an adverse determination of the Third Party Claim would constitute a Company Material Adverse Effect, then (iv) the Indemnifying Party shall have the right to retain its own counsel and control the defense or settlement of any third party claim within twenty (20) days after receipt such Third Party Claim and its reasonable legal fees and costs and expenses of notice thereof from defending such Third Party Claim shall be included as Losses to which the indemnified partyIndemnified Party is entitled to be indemnified; provided that, under the circumstances described in this Section 7.4(c), the Indemnified Party shall not compromise or settle any such indemnified party shall have Third Party Claim without the right to undertake the defense or settlement of such third party claim at the expense and for the account prior written consent of the indemnifying party. The indemnifying party Indemnifying Party, which consent shall not settle any third party claim the defense be unreasonably withheld or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claimdelayed.
Appears in 1 contract
Samples: Stock Purchase Agreement (Gibraltar Industries, Inc.)
Indemnification Procedure for Third Party Claims. If In connection with any indemnified party receives claim of a Third Party for which a Pfizer Indemnitee or Licensee Indemnitee (either of the foregoing, the “Indemnified Party”) seeks indemnification from the other Party (the “Indemnifying Party”) pursuant to this Agreement, the Indemnified Party shall: (a) give the Indemnifying Party prompt written notice of the commencement claim, the amount or the estimated amount of damages sought under such claim to the extent then ascertainable and, to the extent practicable, any other material details pertaining thereto; provided, however, that failure to provide such notice or to include the foregoing information shall not relieve the Indemnifying Party from its liability or obligation hereunder, except to the extent of any action or proceeding or the assertion of any claim by material prejudice as a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim") and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide the indemnifying party with notice direct result of such third party claim. Except failure; (b) cooperate with the Indemnifying Party, [***], in the case of claims seeking equitable relief from the indemnified party, the indemnifying party shall, upon acknowledgment of its obligation to indemnify the indemnified party, be entitled to participate in or, at its option, assume connection with the defense or and settlement of such third party the claim. The ; and (c) permit the Indemnifying Party to assume control of the defense or and settlement shall be conducted through counsel selected by of the indemnifying party and approved by claim, [***]; provided, however, that the indemnified partyIndemnifying Party may not settle the claim without the Indemnified Party’s prior written consent, which approval shall not be unreasonably withheld, conditioned or delayed, unless such settlement (x) provides for the payment by the Indemnifying Party of money as sole relief for the claimant (other than as contemplated by the Deductible), (y) results in the full and general release of the indemnified party Indemnified Party from all liabilities arising or resulting from such claim, and (z) involves no finding or admission of any violation of Applicable Law or the rights of any Person and does not have an effect on any other claims that may be made against the Indemnified Party. If the Indemnifying Party does not assume control of the defense and settlement of such claim, then the Indemnified Party shall fully cooperate control the defense and settlement of such claim with counsel of its selection, [***]. Either the Indemnified Party (if such claim is controlled by the Indemnifying Party) or the Indemnifying Party (if such claim is controlled by the Indemnified Party) shall have the right to participate (but not control) and be represented in any suit or action by advisory counsel of its selection [***]. Notwithstanding the foregoing, if the Indemnifying Party assumes control of the defense and settlement of such claim, the Indemnified Party will have the right to employ separate counsel, [***], in connection with the indemnifying party defense and settlement of the claim if: (i) there are or may be legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (ii) in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate reasonable opinion of counsel to represent itthe Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and Indemnifying Party that would make such separate representation advisable. In the event that the indemnifying party fails to assume Indemnified Party controls the defense or settlement of any third party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party shall have the right to undertake the defense or and settlement of such third party claim at claim, the expense and for the account of the indemnifying party. The indemnifying party shall Indemnified Party may not settle any third party such claim the defense or settlement of which is controlled by it without the indemnified party's Indemnifying Party’s prior written consent, unless the terms of such settlement which shall not be unreasonably withheld, conditioned or compromise releases such indemnified party from any and all liability with respect to such third party claimdelayed.
Appears in 1 contract
Samples: License and Collaboration Agreement (Roivant Sciences Ltd.)
Indemnification Procedure for Third Party Claims. If Promptly, and in any indemnified event within 30 days after the receipt by any party receives written hereto of notice of any claim or the commencement of any action or proceeding or the assertion of any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim") and such indemnified party intends to seek indemnity pursuant to this Article VIIIparty, such indemnified party shall promptly will, if a claim with respect thereto is to be made against any party obligated to provide indemnification hereunder (the indemnifying party with "Indemnifying Party"), give such Indemnifying Party written notice of such third party claimclaim or the commencement of such action or proceeding, but any failure to timely notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent it was actually prejudiced thereby. Except in the case of claims seeking equitable relief from the indemnified party, the indemnifying party shall, upon Upon unconditional and unqualified written acknowledgment of its obligation the Indemnified Party's entitlement to indemnify indemnification therefor and if the indemnified partyIndemnifying Party has sufficient resources to pay any final judgment, be entitled to participate in orsuch Indemnifying Party shall have the right, at its option, assume to settle, compromise or defend, at its own expense and with its own counsel, any such claim, action or proceeding involving the defense asserted liability of the party seeking such indemnification (the "Indemnified Party"), provided that the Indemnifying Party shall not settle, compromise or settlement consent to the entry of such third party any judgment in any pending or threatened claim. The defense , action or settlement shall be conducted through counsel selected by proceeding except with the indemnifying party and approved by consent of the indemnified party, Indemnified Party (which approval consent shall not be unreasonably withheld, and withheld or delayed). If the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party Indemnifying Party fails to assume the defense of such claim, action or settlement proceeding within 30 days of any third party claim within twenty (20) days after receipt of notice thereof from of such claim, action or proceeding, or if at any time the indemnified partyIndemnifying Party shall fail to defend in good faith any such claim, such indemnified party shall have action or proceeding, the right to undertake Indemnified Party may assume the defense or settlement thereof and may employ counsel with respect thereto and all fees and expenses of such third party claim at counsel shall be paid by the expense Indemnifying Party, and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claim.Indemnified Party may conduct and
Appears in 1 contract
Indemnification Procedure for Third Party Claims. If any (a) Promptly after receipt by an indemnified party receives written under Section 8.2 or 8.3, of notice of the commencement of any action Action or proceeding or Proceeding against it, the assertion of any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim") and such indemnified party intends shall, if a Claim is to seek indemnity pursuant be made against an indemnifying party under such Section 8.2 or 8.3, as applicable, give notice to this Article VIII, such indemnified party shall promptly provide the indemnifying party with notice of the commencement of such third Claim, but the failure to notify the indemnifying party claim. Except in will not relieve the case indemnifying party of claims seeking equitable relief from the any Liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such Action or Proceeding is materially prejudiced by the indemnifying party's failure to give such notice.
(b) If any Action or Proceeding referred to in Section 8.4(a) is brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Action or Proceeding, the indemnifying party shall, upon acknowledgment of its obligation to indemnify the indemnified party, will be entitled to participate in orsuch Action or Proceeding and, at its option, assume to the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by extent that it wishes (unless (i) the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld, is also a party to such Action or Proceeding and the indemnified party shall fully cooperate with the indemnifying party determines in connection therewithgood faith that joint representation would be inappropriate, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In the event that or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Action or Proceeding and provide indemnification with respect to such Action or Proceeding), to assume the defense of such Action or settlement of any third Proceeding with counsel satisfactory to the indemnified party claim within twenty (20) days and, after receipt of notice thereof from the indemnified party, such indemnifying party to the indemnified party shall have the right of its election to undertake assume the defense of such Action or Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 8.4 for any fees of other counsel or any other expenses with respect to the defense of such Action or Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Action or Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of an Action or Proceeding, (i) it will be conclusively established for purposes of this Agreement that the Claims made in that Action or Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such third party claim at the expense and for the account of Claims may be effected by the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consentconsent unless (A) there is no finding or admission of any violation of Law or Order or any violation of the rights of any Person and no effect on any other Claims that may be made against the indemnified party, unless and (B) the terms of such settlement or compromise releases such sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnified party from any and all liability will have no Liability with respect to any compromise or settlement of such third Claims effected without its consent. If notice is given to an indemnifying party claimof the commencement of any Action or Proceeding and the indemnifying party does not, within ten (10) days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Action or Proceeding, the indemnifying party will be bound by any determination made in such Action or Proceeding or any compromise or settlement effected by the indemnified party.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that an Action or Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Action or Proceeding, but the indemnifying party will not be bound by any determination of an Action or Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
Appears in 1 contract
Indemnification Procedure for Third Party Claims. If (a) In the event that subsequent to the Closing any indemnified party Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or the assertion an affiliate of a party to this Agreement (including, but not limited to any claim by a third party domestic or the imposition of any penalty foreign court or assessment for which indemnity may be sought under this Article VIII governmental authority, federal, state or local) (a "third party claimThird Party Claim") and against such indemnified Indemnified Party, against which a party intends to seek indemnity pursuant to this Article VIIIAgreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), such indemnified party the Indemnified Party shall promptly provide give written notice together with a statement of any available information regarding such claim to the indemnifying party with Indemnifying Party within fifteen (15) days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall have the right, upon written notice to the Indemnified Party (the "Defense Notice") within thirty days (30) after receipt from the Indemnified Party of notice of such third party claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the name of the Indemnified Party.
(b) In the event that the Indemnifying Party shall fail to give the Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith and to compromise and settle the claim without prior consent of the Indemnifying Party and the Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Losses paid or incurred in connection therewith.
(c) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject Third Party Claim, the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive or other equitable relief would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. If a firm decision is made to settle a Third Party Claim, which offer the Indemnifying Party is not permitted to settle under this Section 6.3 without the consent of the Indemnified Party, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within 10 calendar days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed the amount of such settlement offer, plus costs and expenses paid or incurred by the Indemnified Party up to the point such notice had been delivered. Except as provided in Section 6.3(b) hereof, if an Indemnified Party settles any Third Party Claim without the case prior written consent of claims seeking equitable relief from the indemnified partyIndemnifying Party, the indemnifying party shall, upon acknowledgment of its Indemnifying Party shall have no obligation to indemnify the indemnified partyIndemnified Party under this Article 6 with respect to such Third Party Claim.
(d) Notwithstanding Section 6.3(a) hereof, if, after receipt of a Defense Notice, any Third Party Claim seeks an injunction or other equitable relief, which, if successful, could reasonably be entitled expected to materially interfere with the business, operations, assets, condition (financial or otherwise) of the Business Unit then, and in such event, Buyer shall have the right to control the defense or settlement of any such Third Party Claim. If Buyer should so elect to exercise such right, Buyer shall pay the reasonable legal expenses associated with such defense and the Indemnifying Party shall have the right at its sole expense to participate in orin, at its optionbut not control, assume the defense or settlement of such third party claimThird Party Claim. The defense or No settlement shall of any such Third Party Claim may be conducted through counsel selected by made without the indemnifying party and approved by consent of the indemnified party, Indemnifying Party which approval shall consent may not be unreasonably withheld.
(e) Any judgment entered or settlement agreed upon in the manner provided herein shall be binding upon the Indemnifying Party, and the indemnified party shall fully cooperate with the indemnifying party in connection therewith, provided that the indemnified party shall conclusively be entitled at any time deemed to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party fails to assume the defense or settlement of any third party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party shall have the right to undertake the defense or settlement of such third party claim at the expense and for the account of the indemnifying party. The indemnifying party shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability be an obligation with respect to such third party claimwhich the Indemnified Party is entitled to prompt indemnification hereunder, subject to the Indemnifying Party's right to appeal an appealable judgment or order.
Appears in 1 contract
Indemnification Procedure for Third Party Claims. If In the event that any indemnified party Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification or receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is not a party to this Agreement or the assertion an affiliate of any claim by a third party or the imposition of any penalty or assessment for which indemnity may be sought under to this Article VIII Agreement (a "third party claimThird Party Claim") and against such indemnified Indemnified Party, against which a party intends to seek indemnity pursuant to this Article VIIIAgreement is required to provide indemnification under this Agreement (an "Indemnifying Party"), the Indemnified Party shall give written notice together with a statement of any available information regarding such indemnified party claim to the Indemnifying Party within 5 business days after learning of such claim (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such claim). The Indemnifying Party shall promptly provide have the indemnifying party with right, upon written notice to the Indemnified Party (the "Defense Notice") within 5 business days after receipt from the Indemnified Party of notice of such third party claim. Except , which notice by the Indemnifying Party shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such claim in its own name, or if necessary in the case name of claims seeking equitable relief from the indemnified partyIndemnified Party; provided, however, that the indemnifying party shall, upon acknowledgment of its obligation Indemnified Party shall have the right to indemnify approve the indemnified party, be entitled to participate in or, at its option, assume the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified partyDefense Counsel, which approval shall not be unreasonably withheldwithheld or delayed, and in the indemnified party event the Indemnifying Party and the Indemnified Party cannot agree upon such counsel within 10 days after the Defense Notice is provided, then the Indemnifying Party shall fully cooperate with the indemnifying party in connection therewithpropose an alternate Defense Counsel, provided that the indemnified party which shall be entitled at any time subject again to employthe Indemnified Party's approval which approval shall not be unreasonably withheld or delayed. If the parties still fail to agree on the Defense Counsel, then, at its own expensesuch time, separate counsel to represent it. the Indemnifying Party shall determine the Defense Counsel.
(a) In the event that the indemnifying party fails Indemnifying Party shall fail to assume give the Defense Notice within a thirty day period, it shall be deemed to have elected not to conduct the defense of the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense and to compromise and settle the claim without prior consent of the Indemnifying Party.
(b) In the event that the Indemnifying Party does deliver a Defense Notice and thereby elects to conduct the defense of the subject claim, the Indemnifying Party shall be entitled to have the exclusive control over the defense and settlement of the subject claim and the Indemnified Party will cooperate with and make available to the Indemnifying Party such assistance and materials as it may reasonably request, all at the expense of the Indemnifying Party; the Indemnified Party shall have the right at its expense to participate in the defense assisted by counsel of its own choosing and at its sole expense. In such an event, the Indemnifying Party will not settle the subject claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.
(c) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third Party Claim or cease to defend against such claim, if pursuant to or as a result of such settlement or cessation, (i) injunctive relief or specific performance would be imposed against the Indemnified Party, or (ii) such settlement or cessation would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder.
(d) If an Indemnified Party refuses to consent to a bona fide offer of settlement which provides for a full release of the Indemnified Party and its affiliates, if parties, and solely for a monetary payment which the Indemnifying Party wishes to accept, the Indemnified Party may continue to pursue such matter, free of any participation by the Indemnifying Party, at the sole expense of the Indemnified Party. In such an event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement.
(e) Notwithstanding clause (b) above, the Indemnifying Party shall not be entitled to control, but may participate in, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any third party claim within twenty (20i) days after receipt that seeks a temporary restraining order, a preliminary or permanent injunction or specific performance against the Indemnified Party, (ii) to the extent such claim involves criminal allegations against the Indemnified Party, (iii) that if unsuccessful, would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of notice thereof from the indemnified partyIndemnified Party or (iv) if such claim would impose liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder. In such an event, such indemnified party shall the Indemnifying Party will still have all of its obligations hereunder provided that the right to undertake Indemnified Party will not settle the defense subject claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld or delayed.
(f) Any final judgment entered or settlement of such third party claim at agreed upon in the expense and for manner provided herein shall be binding upon all parties and, if the account dispute in question would impose liability on the part of the indemnifying party. The indemnifying party Indemnifying Party under this Article VIII, shall not settle any third party claim the defense or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability conclusively be deemed to be an obligation with respect to which the Indemnified Party is entitled to prompt indemnification hereunder.
(g) A failure by an Indemnified Party to give timely, complete or accurate notice as provided in this Section 8.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such third failure, any party claimentitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise directly and materially damaged as a result of such failure to give timely notice.
Appears in 1 contract
Samples: Merger Agreement (Phillips Ian S)
Indemnification Procedure for Third Party Claims. If any (a) Any indemnified party receives written seeking indemnification under this Agreement (each, an "INDEMNIFIED PARTY") shall promptly notify the indemnifying party of any third party claim or demand for which the Indemnified Party is asserting a claim hereunder. Such notice shall be accompanied by a reasonably complete description of the commencement basis for such claim or demand (including an estimate of any action or proceeding or the assertion amount thereof) and reference to the provisions of this Agreement under which liability is asserted.
(b) The indemnifying party shall have the right, at its own cost, to participate jointly in the defense of any claim or demand in connection with which the Indemnified Party has claimed indemnification hereunder, and may elect to take over the defense of such claim or demand through counsel of its own choosing by a third party so notifying the Indemnified Party within 30 days of receipt of the Indemnified Party's notice of such claim or the imposition of any penalty or assessment for which indemnity may be sought under this Article VIII (a "third party claim") and such indemnified party intends to seek indemnity pursuant to this Article VIII, such indemnified party shall promptly provide demand. If the indemnifying party with notice makes such an election:
(i) it shall keep the Indemnified Party reasonably informed as to the status of such third party claim. Except in matter and shall promptly send copies of all pleadings to the case of claims seeking equitable relief from the indemnified party, Indemnified Party;
(ii) the indemnifying party shall, upon acknowledgment shall not settle or compromise or consent to the entry of its obligation any judgment with respect to indemnify any such claim or demand that it elects to defend without the indemnified party, be entitled to participate in or, at its option, assume prior written consent of the defense or settlement of such third party claim. The defense or settlement shall be conducted through counsel selected by the indemnifying party and approved by the indemnified party, Indemnified Party (which approval consent shall not be unreasonably withheld) unless such settlement, compromise or judgment (i) includes an unconditional release to the Indemnified Party from all liability arising out of such claim or demand, (ii) provides for no remedy other than money damages or other money payments and (iii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of the indemnified party shall fully cooperate with Indemnified Party; and
(iii) the indemnifying party in connection therewith, provided that the indemnified party shall be entitled at any time to employ, at its own expense, separate counsel to represent it. In the event that the indemnifying party fails to assume the defense or settlement of any third party claim within twenty (20) days after receipt of notice thereof from the indemnified party, such indemnified party Indemnified Party shall have the right to undertake participate jointly in the defense or settlement of such third party claim or demand, but shall do so at the expense and for the account of the indemnifying party. The indemnifying party shall its own cost not settle any third party claim the defense subject to reimbursement under Section 10.1 or settlement of which is controlled by it without the indemnified party's prior written consent, unless the terms of such settlement or compromise releases such indemnified party from any and all liability with respect to such third party claim10.
Appears in 1 contract
Samples: Stock Purchase Agreement (SDL Inc)
