Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third party involving a claim for which a party required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification (an “Indemnified Party”) hereunder (an “Asserted Liability”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability (the “Claim Notice”); provided, that no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, except to the extent that the Indemnifying Party is prejudiced by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld). (b) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Party.
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Indemnification Procedures and Limitations. (a) In the event that any Action action, suit, claim or proceeding is commenced by a third party involving a claim for which a party required to provide indemnification hereunder (an “"Indemnifying Party”") may be liable to a party entitled to indemnification (an “"Indemnified Party”") hereunder (an “Asserted Liability”a "Third Party Claim"), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability Third Party Claim indicating the nature of such claim and the basis therefore (the “"Claim Notice”)") and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that no failure -------- of any Indemnified Party to give such Claim Notice and no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, hereunder except (and only) to the extent that the Indemnifying Party it shall be finally determined by a court of competent jurisdiction (which determination is prejudiced by not subject to appeal or further review) that such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party failure shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability proximately and provides solely for monetary relief to be satisfied by materially adversely prejudiced the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: .
(ib) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the An Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of employ separate counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such caseProceeding and to participate in the defense thereof, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such partyIndemnified Party or Parties unless: (i) the Indemnifying Party has agreed in writing to pay such fees and participate in expenses; (ii) the Indemnifying Party shall have failed promptly to assume the defense of such Asserted LiabilityProceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (iii) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, such counsel shall be at the expense of the Indemnifying Party). It being understood, however, that the Indemnifying Party shall not, in connection with any one such Proceeding, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, which firm shall be appointed by a majority of the Indemnified Parties; provided, however, that in the case a single firm of attorneys would be inappropriate due to actual or potential differing interests or conflicts between such Indemnified Parties and any other party represented by such counsel in such Proceeding or otherwise, then the Indemnifying Party shall be liable for the fees and expenses of one additional firm of attorneys with respect to such Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any such Asserted Liability Proceeding effected without its written consent (consent, which consent shall not be unreasonably withheld).
(b) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Party.unreasonably
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Indemnification Procedures and Limitations. (a) In the event that any Action action, suit, claim or proceeding is commenced by a third party involving a claim for which a party required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification (an “Indemnified Party”) hereunder (an a “Asserted LiabilityThird Party Claim”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability Third Party Claim indicating the nature of such claim and the basis therefore (the “Claim Notice”)) and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that no failure of any Indemnified Party to give such Claim Notice and no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, hereunder except (and only) to the extent that the Indemnifying Party it shall be finally determined by a court of competent jurisdiction (which determination is prejudiced by not subject to appeal or further review) that such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party failure shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability proximately and provides solely for monetary relief to be satisfied by materially adversely prejudiced the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: .
(ib) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the An Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of employ separate counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such caseProceeding and to participate in the defense thereof, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such partyIndemnified Party or Parties unless: (i) the Indemnifying Party has agreed in writing to pay such fees and participate in expenses; (ii) the Indemnifying Party shall have failed promptly to assume the defense of such Asserted LiabilityProceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (iii) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, such counsel shall be at the expense of the Indemnifying Party). It being understood, however, that the Indemnifying Party shall not, in connection with any one such Proceeding, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, which firm shall be appointed by a majority of the Indemnified Parties; provided, however, that in the case a single firm of attorneys would be inappropriate due to actual or potential differing interests or conflicts between such Indemnified Parties and any other party represented by such counsel in such Proceeding or otherwise, then the Indemnifying Party shall be liable for the fees and expenses of one additional firm of attorneys with respect to such Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any such Asserted Liability Proceeding effected without its written consent (consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not contain any admission of wrongdoing or illegal conduct.
(c) All reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Business Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder).
(bd) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received recovered by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses Losses.
(e) Notwithstanding any other provision of this Agreement, in no event shall Issuer, QRC or any Buyer be liable for punitive damages or any special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought.
(f) Except for a claim of fraud, the remedies provided in this Article VII (including specific performance, as discussed in Section 7.4 (g) below) shall be the sole and (iii) any net Tax benefit realized or reasonably expected to be realized by exclusive remedies of the Indemnified Party parties, from and after the Closing Date, with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse Agreement and the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Partytransactions contemplated hereby.
Appears in 1 contract
Indemnification Procedures and Limitations. (a) In the event that any Action action, suit, claim or proceeding is commenced by a third party involving a claim for which a party required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification (an “Indemnified Party”) hereunder (an a “Asserted LiabilityThird Party Claim”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability Third Party Claim indicating the nature of such claim and the basis therefore (the “Claim Notice”); provided, however, that no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, hereunder except to the extent that the Indemnifying Party is adversely prejudiced by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicableThereafter, the basis of Indemnified Party shall deliver to the claim for Indemnifying Party, promptly following the Losses, the section(s) of this Agreement that form the basis for such claimIndemnified Party’s receipt thereof, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred notices and documents (including court papers) received by the Indemnified PartyParty relating to the Third-Party Claim. The Indemnifying PartySubject to the provisions related to the settlement of Third-Party Claims set forth in Section 9.4(b), upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled have the right to prosecute, appealdefend against, negotiate, resolve, settle, compromise, arbitrate settle or otherwise pursue such Asserted Liability deal with any Third-Party Claim and (ii) to select counsel of its choice. If the Indemnifying Party shall have no obligation does not, within 30 days from its receipt of the Claim Notice (the “Notice Period”), elect to indemnify undertake to defend against, negotiate, settle or pay for or reimburse otherwise deal with any Indemnified Third Party for any attorneys’ feesClaim, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; providedmay, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent subject to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party provisions related to the applicable claim settlement of Third-Party Claims set forth in Section 9.4(b), defend against, negotiate, settle or has been actually threatened to be made a party thereto unless otherwise deal with such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Third Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying PartyClaim. If the Indemnifying Party undertakes to defend against such Asserted LiabilityThird Party Claim, (i) the Indemnifying Party shall not be liable to the Indemnified Party for any legal fees or expenses incurred by the Indemnified Party in connection with such Third Party Claim and (ii) the Indemnified Party may participate and retain counsel, at its own cost and expense, in the defense of such Third Party Claim (it being understood and agreed that the Indemnifying Party shall control such defense); provided, however, the Indemnified Party shall: will be entitled to participate in any such defense with separate counsel the reasonable fees and expenses of which the Indemnifying Party shall bear if, but only if, (A) so requested by the Indemnifying Party to participate or (B) a conflict of interest exists between the Indemnified Party and the Indemnifying Party that would make it inappropriate in the reasonable judgment of such Indemnified Party (upon and in conformity with the advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party; provided, further, that the Indemnifying Party will not be required to pay the reasonable fees and expenses of more than one (1) such counsel for all Indemnified Parties in connection with any Third-Party Claim.
(b) If the Indemnifying Party undertakes to defend against such Third Party Claim, the other party shall (and shall cause the applicable Indemnified Parties to) (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof of such Third Party Claim, including providing all information and documents available to the Indemnified Party which relate to such Third Party Claim and (ii) have the rightconsent and agree to any settlement, at its own cost and expense, to participate in the defense compromise or discharge of any Asserted Liability with counsel selected by it (and reasonably satisfactory to a Third-Party Claim that the Indemnifying PartyParty may recommend and that (A) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements does not require any payment or admission of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the liability by any Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to releases the Indemnified Party in each jurisdiction for which connection with such Third-Party Claim and (C) does not otherwise have a material and adverse effect on the Business as determined by the Indemnified Party determines counsel is requiredin its reasonable discretion. Notwithstanding If the foregoingIndemnifying Party elects not to undertake within the Notice Period to defend against a Third-Party Claim, then the Indemnified Party shall have the right to controlnot admit any liability with respect to, pay or settle any Asserted Liability that the Indemnifying settle, compromise or discharge, such Third-Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party Claim without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its prior written consent (which consent shall not be unreasonably withheldwithheld or delayed).
(bc) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received recovered by the Indemnified Party under any insurance policy with respect to such LossesLosses (it being understood and agreed by the parties that Seller (in the case of Seller Indemnified Parties) and Buyer (in the case of Buyer Indemnified Parties) shall use their commercially reasonable efforts to effect any such recovery), (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized receivable by the Indemnified Party with respect to such Losses. If an .
(d) Notwithstanding any other provision of this Agreement, in no event shall any Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect be entitled to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then IX to the extent any Losses were attributable to such Indemnified Party shall promptly reimburse Party’s own gross negligence or willful misconduct.
(e) To the applicable Indemnifying Party for extent that Seller makes any payment made by pursuant to this Article IX in respect of Losses for which Buyer or any of its Affiliates have a right to recover against a third party (including an insurance company), Seller shall be subrogated to the right of Buyer or any of its Affiliates to seek and obtain recovery from such Indemnifying Party third party; provided, however, that if Seller shall be prohibited from such subrogation, Buyer shall use its commercially reasonable efforts to seek recovery from such third party on Seller’s behalf and shall pay any such recovery to Seller.
(f) Notwithstanding any other provision of this Agreement, in no event shall Seller or Buyer be liable for (i) punitive damages or any special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought or (ii) lost profits or diminution in value resulting from a breach or an alleged breach of any representation, warranty, covenant or other agreement set forth in this Agreement or otherwise in connection with providing the transactions contemplated hereby, even if under applicable Law, such indemnification up lost profits or diminution in value would not be considered consequential or special damages.
(g) Except as otherwise provided by applicable law, Buyer and Seller agree to such amount realized or received by treat any indemnity payment made pursuant to this Article IX as an adjustment to the Indemnified PartyPurchase Price paid to Seller for all income Tax purposes.
(h) The remedies provided in this Article IX shall be the sole and exclusive remedies of the parties, from and after the Closing Date, with respect to this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Samples: General Partnership Interest Purchase Agreement (Tc Pipelines Lp)
Indemnification Procedures and Limitations. (a) In The parties acknowledge that the event only indemnification obligations that will exist in connection with this Agreement or any Action of the transactions contemplated by this Agreement will be the obligations in Sections 5.7, 5.8 and 5.11 of this Agreement. Whenever any claim is commenced by a third party involving a claim made for which a party required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to under Section 5.7, 5.8 or 5.11 of this Agreement, the Person claiming such indemnification (an “the "Indemnified Party”") hereunder will give written notice to the party against whom indemnification is sought (the "Indemnitor") (each an “Asserted Liability”"Indemnified Claim"), ; provided that if the Indemnified Party shall promptly notify receives a complaint, petition or any other pleading in connection with an Indemnified Claim which requires the Indemnifying Party in writing filing of an answer or other responsive pleading, it will furnish the Indemnitor with a copy of such Asserted Liability (the “Claim Notice”); provided, that no delay on the part of pleading as soon as reasonably practicable after receipt and determination by the Indemnified Party that it will seek indemnification in giving any such Claim Notice respect thereof, but the failure to do so shall relieve not affect the Indemnifying Party of any indemnification obligation hereunder, Indemnitor's obligations hereunder except to the extent that of prejudice. Such notice will describe the Indemnifying Party is prejudiced by such delay. Any Indemnified Claim Notice shall set forth, with as much specificity as is reasonably practicable, in reasonable detail and will indicate the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, amount (to the extent reasonably practicable, a reasonable estimate feasible) of the amount of the Losses Loss that have has been or may be incurred suffered by the Indemnified Party, which estimate will not be binding.
(b) The parties will cooperate with each other in all reasonable respects in the defense (or settlement) of Indemnified Claims under this Agreement. The Indemnifying Party, upon giving written notice to such Indemnified Party, will Indemnitor shall be entitled to participate in the defense of any Indemnified Claim involving any third party (each a "Third-Party Claim") and, if it so elects, to assume the defense of such Asserted Liability, in whole or in part, at its own costthe Third-Party Claim, with counsel reasonably satisfactory to the Indemnified Party. After written notice from the Indemnitor to the Indemnified Party of its own choosing andsuch election to assume the defense, in the Indemnitor will not, so long as the Indemnitor diligently conducts such an eventdefense, (i) be liable to the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation other expenses subsequently incurred by the Indemnified Party after in connection with the defense of the Third-Party Claim other than costs and expenses of the Indemnified Party incurred at the request of the Indemnitor. The assumption of the defense of such Asserted Liability; providedThird-Party Claim will be deemed an admission by the Indemnitor that it is liable to the Indemnified Party for indemnification in respect of such Third-Party Claim. If the Indemnitor chooses to assume the defense of any Third-Party Claim, howeverthe Indemnified Party will make available to the Indemnitor any books, records or other documents within its control that are reasonable or appropriate for such defense. The parties will cooperate with each other in all reasonable respects to determine as soon as reasonably practicable whether and to the Indemnifying extent a claim is indemnifiable hereunder. Notwithstanding anything to the contrary contained in this Agreement, in the case of a Third-Party Claim, (i) the Indemnitor shall notbe entitled to participate in (but not control) the defense of such claim irrespective of whether it elects to assume the defense thereof as provided above, (ii) the Indemnified Party agrees (and, in the case where the Buyer is the Indemnified Party, to cause the Deco Companies) to make available to the Indemnitor any books, records or other documents within its control as the Indemnitor shall reasonably request and (iii) the Indemnitor shall have the right at any time if it so elects to assume the defense of the Third-Party Claim.
(c) The Indemnitor may, at its election and following its admission that it is liable for such Third-Party Claim and its assumption of the defense thereof, settle or compromise any Third-Party Claim but the Indemnitor may not settle or compromise such Third Party Claim without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld)) unless (i) the sole relief provided is the payment of monetary damages and the Indemnitor pays such monetary damages in full, (ii) there is no finding or admission of any violation of any Governmental Regulation or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party and (iii) the settlement or compromise includes the unconditional release of the Indemnified Party from such Third Party Claim.
(bd) In calculating amounts payable The Indemnified Party may not settle or compromise any Third-Party Claim without the prior written consent of the Indemnitor (which consent may not be unreasonably withheld), unless the Indemnitor has elected not to assume the defense of the Third-Party Claim, has failed to notify the Indemnified Party within 30 days after receiving written notice of such Third-Party Claim (or sooner if the nature of the asserted liability so requires) of its election to assume the defense of such Third-Party Claim, or has failed or refused to assist the Indemnified Party in the defense of such Third-Party Claim. Notwithstanding anything to the contrary contained in this Agreement, any settlement or compromise of any Third-Party Claim by an Indemnified Party, Party without the prior written consent of the Indemnitor shall not be binding upon the Indemnitor as to whether the Indemnitor is required to provide indemnification under this Agreement or as to the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made under any other representationthereof.
(e) Notwithstanding anything to the contrary contained in this Agreement, warranty, covenant, or agreement and shall be computed net of if (i) payments received any Third-Party Claim is reasonably likely to result in an injunction or other equitable remedies against Buyer, or any of the Deco Companies that is reasonably expected likely to be received by have significant consequences to the Indemnified Party under any insurance policy with respect Deco Companies taken as a whole or to such LossesBuyer, (ii) any prior Third-Party Claim is reasonably likely to result in Losses which, taken with other Indemnified Claims by Buyer any of the Deco Companies or subsequent recovery by their Representatives, would not be fully indemnified hereunder as a result of Seller's financial condition or the Indemnified Party from any Person Cap (as defined in Section 10.14(i)(v) below), (iii) with respect to such Losses Third-Party Claim there exists any material conflict of interest between Seller and Buyer or there are material defenses available to Buyer, a Deco Company or any of their Representatives (iiiother than Seller), as applicable, that are not available to Seller or may not be asserted by Seller on such Person's behalf, (iv) any net Tax benefit realized Third Party Claim is reasonably likely to have a material adverse effect on the operations, assets, properties, prospects, financial condition or reasonably expected results of operations of Buyer and the Deco Companies taken as a whole, (v) such Third- Party Claim relates to Taxes (unless the claim relates to Taxes for any period other than a Straddle Period and the resolution of the claim will not affect Taxes for any other period), or (vi) Seller fails, either before or after assuming the defense of the Third Party Claim, to diligently defend such Third-Party Claim, then in any such event, at Buyer's election (which election shall be realized made by Buyer as promptly as practicable under the Indemnified circumstances), Seller shall not have the right to assume or control the defense of any such Third-Party with respect Claim.
(f) Notwithstanding anything to such Losses. If an Indemnified the contrary contained herein, Buyer and/or a Deco Company (at the election of Buyer), shall have the sole right, at the election of Buyer (which election shall be made by Buyer as promptly as practicable under the circumstances), to control the defense of any Third-Party realizes a Tax benefit Claim against Buyer, any of the Deco Companies or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent of their respective Representatives (other than Seller) relating to any indemnification provided pursuant claim that would constitute any breach of, or inaccuracy in, any of the representations and warranties of Seller contained in Section 3.16, any disclosures contained in Section 3.16 of the Disclosure Schedule, any matter revealed in any of the Environmental Assessments, or any New Facts related to this Article VIIIany of the foregoing, then such Indemnified Party shall promptly reimburse and, without limiting the applicable Indemnifying Party for generality of the foregoing, to control any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified PartyResponse Activities.
Appears in 1 contract
Indemnification Procedures and Limitations. (a) In the event that any Action action, suit, claim or proceeding is commenced by a third party involving a claim for which a party required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification (an “Indemnified Party”) hereunder (an a “Asserted LiabilityThird Party Claim”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability Third Party Claim indicating the nature of such claim and the basis therefore (the “Claim Notice”); provided, however, that no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, hereunder except to the extent that the Indemnifying Party is adversely prejudiced by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicableThereafter, the basis of Indemnified Party shall deliver to the claim for Indemnifying Party, promptly following the Losses, the section(s) of this Agreement that form the basis for such claimIndemnified Party’s receipt thereof, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred notices and documents (including court papers) received by the Indemnified PartyParty relating to the Third-Party Claim. The Indemnifying PartySubject to the provisions related to the settlement of Third-Party Claims set forth in Section 9.4(b), upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled have the right to prosecute, appealdefend against, negotiate, resolve, settle, compromise, arbitrate settle or otherwise pursue such Asserted Liability deal with any Third-Party Claim and (ii) to select counsel of its choice. If the Indemnifying Party shall have no obligation does not, within 30 days from its receipt of the Claim Notice (the “Notice Period”), elect to indemnify undertake to defend against, negotiate, settle or pay for or reimburse otherwise deal with any Indemnified Third Party for any attorneys’ feesClaim, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; providedmay, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent subject to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party provisions related to the applicable claim settlement of Third-Party Claims set forth in Section 9.4(b), defend against, negotiate, settle or has been actually threatened to be made a party thereto unless otherwise deal with such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Third Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying PartyClaim. If the Indemnifying Party undertakes to defend against such Asserted LiabilityThird Party Claim, (i) the Indemnifying Party shall not be liable to the Indemnified Party for any legal fees or expenses incurred by the Indemnified Party in connection with such Third Party Claim and (ii) the Indemnified Party may participate and retain counsel, at its own cost and expense, in the defense of such Third Party Claim (it being understood and agreed that the Indemnifying Party shall control such defense); provided, however, the Indemnified Party shall: will be entitled to participate in any such defense with separate counsel the reasonable fees and expenses of which the Indemnifying Party shall bear if, but only if,
(A) so requested by the Indemnifying Party to participate or (B) a conflict of interest exists between the Indemnified Party and the Indemnifying Party that would make it inappropriate in the reasonable judgment of such Indemnified Party (upon and in conformity with the advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party; provided, further, that the Indemnifying Party will not be required to pay the reasonable fees and expenses of more than one (1) such counsel for all Indemnified Parties in connection with any Third-Party Claim.
(b) If the Indemnifying Party undertakes to defend against such Third Party Claim, the other party shall (and shall cause the applicable Indemnified Parties to) (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof of such Third Party Claim, including providing all information and documents available to the Indemnified Party which relate to such Third Party Claim and (ii) have the rightconsent and agree to any settlement, at its own cost and expense, to participate in the defense compromise or discharge of any Asserted Liability with counsel selected by it (and reasonably satisfactory to a Third-Party Claim that the Indemnifying PartyParty may recommend and that (A) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements does not require any payment or admission of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the liability by any Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to releases the Indemnified Party in each jurisdiction for which connection with such Third-Party Claim and (C) does not otherwise have a material and adverse effect on the Business as determined by the Indemnified Party determines counsel is requiredin its reasonable discretion. Notwithstanding If the foregoingIndemnifying Party elects not to undertake within the Notice Period to defend against a Third-Party Claim, then the Indemnified Party shall have the right to controlnot admit any liability with respect to, pay or settle any Asserted Liability that the Indemnifying settle, compromise or discharge, such Third-Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party Claim without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its prior written consent (which consent shall not be unreasonably withheldwithheld or delayed).
(bc) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received recovered by the Indemnified Party under any insurance policy with respect to such LossesLosses (it being understood and agreed by the parties that Seller (in the case of Seller Indemnified Parties) and Buyer (in the case of Buyer Indemnified Parties) shall use their commercially reasonable efforts to effect any such recovery), (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized receivable by the Indemnified Party with respect to such Losses. If an .
(d) Notwithstanding any other provision of this Agreement, in no event shall any Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect be entitled to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then IX (i) to the extent such Indemnified Party shall promptly reimburse has otherwise been compensated for such Losses by reason of any adjustment contemplated by Section 2.3 or (ii) to the applicable Indemnifying Party for extent any Losses were attributable to such Indemnified Party’s own gross negligence or willful misconduct.
(e) To the extent that Seller makes any payment made by pursuant to this Article IX in respect of Losses for which Buyer or any of its Affiliates have a right to recover against a third party (including an insurance company), Seller shall be subrogated to the right of Buyer or any of its Affiliates to seek and obtain recovery from such Indemnifying Party third party; provided, however, that if Seller shall be prohibited from such subrogation, Buyer shall use its commercially reasonable efforts to seek recovery from such third party on Seller’s behalf and shall pay any such recovery to Seller.
(f) Notwithstanding any other provision of this Agreement, in no event shall Seller or Buyer be liable for (i) punitive damages or any special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought or (ii) lost profits or diminution in value resulting from a breach or an alleged breach of any representation, warranty, covenant or other agreement set forth in this Agreement or otherwise in connection with providing the transactions contemplated hereby, even if under applicable Law, such indemnification up lost profits or diminution in value would not be considered consequential or special damages.
(g) Except as otherwise provided by applicable law, Buyer and Seller agree to such amount realized or received by treat any indemnity payment made pursuant to this Article IX as an adjustment to the Indemnified PartyPurchase Price paid to Seller for all income Tax purposes.
(h) The remedies provided in this Article IX shall be the sole and exclusive remedies of the parties, from and after the Closing Date, with respect to this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Samples: General Partnership Interest Purchase Agreement (Tc Pipelines Lp)
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
13.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
13.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party in writing of such Asserted Liability right to defend the claim (without limiting the “Claim Notice”); provided, that no delay on the part right of the Indemnified Party Indemnitor to participate in giving the defense) and to charge the Indemnitor with the reasonable cost of any such Claim Notice defense, including reasonable attorneys' fees, and the Indemnitee shall relieve have the Indemnifying Party right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any terms reasonably approved by the Indemnitee.
13.3.3 Neither Newpark nor the Stockholders shall have any liability for breach of any indemnification obligation hereunder, warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced by such delayamount of all valid claims for breach of warranty or representation against it or them hereunder exceeds an aggregate of $50,000. Any Claim Notice In no event shall set forth, with as much specificity as is reasonably practicable, the basis liability of any of the claim Stockholders for any breach of warranty or representation hereunder exceed the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate value of the amount of Newpark Shares for which his Company Shares are exchanged in the Losses that have been Exchange, for which purpose they shall be valued at their Closing Value. To the fullest extent permitted by law, Stockholders shall satisfy their liability hereunder by delivering to Newpark some or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense all of such Asserted LiabilityNewpark Shares, in whole or in part, valued at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liabilitytheir Closing Value, and the Indemnified Party Newpark shall not be liable for any settlement of such Asserted Liability without satisfy its written consent (which consent shall not be unreasonably withheld).
(b) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received liability by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained issuing additional Newpark Shares valued at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Party.their Closing
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Newpark Resources Inc)
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
13.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "INDEMNITEE") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "INDEMNITOR") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
13.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party right to defend the claim (without limiting the right of the Indemnitor to participate in writing the defense) and to charge the Indemnitor with the reasonable cost of any such Asserted Liability (defense, including reasonable attorneys' fees, and the “Claim Notice”); Indemnitee shall have the right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any terms reasonably approved by the Indemnitee.
13.3.3 Except as herein provided, that no delay on neither Torotel nor the part Stockholders shall have any liability for breach of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced by such delayamount of all valid claims for breach of warranty or representation against it hereunder exceeds an aggregate of $15,000. Any Claim Notice shall Except as herein provided, (a) except for liability for any breach of the warranty and representation set forth, with as much specificity as is reasonably practicableforth in Section 3.10 , the basis liability of each Stockholder for any breach of warranty or representation hereunder shall not exceed the aggregate value of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction Torotel Shares for which the Indemnified Party determines counsel is requiredCompany Shares owned by such Stockholder are exchanged in the Merger, for which purpose the Torotel Shares shall be valued at their "Closing Value" (as defined in Section 16). Notwithstanding To the foregoingfullest extent permitted by law, the Indemnified Party Stockholders may, at their election, satisfy any liability they may have hereunder by delivering to Torotel some or all of the Torotel Shares received by them in the Merger, valued at their Closing Value. Nothing contained herein shall relieve the Stockholders or Torotel of any liability they may have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement intentional breach of representation or warranty or for breach of any Asserted Liability covenants or agreements made herein by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld).
(b) 13.3.4 In calculating amounts payable to an Indemnified Party, determining the amount of any indemnified Losses damage, loss, liability, cost or expense suffered by the Indemnitee which gives rise to liability of the Indemnitor hereunder, there shall be determined without duplication taken into account the amount of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be benefits actually realized by the Indemnified Party with respect Indemnitee and its Affiliates attributable to such Losses. If an Indemnified Party realizes a damage, loss, liability, cost or expense or derived therefrom in the same or any past or subsequent taxable period, also taking into account the Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse treatment of the applicable Indemnifying Party for receipt by the Indemnitee of any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by from the Indemnified PartyIndemnitor.
Appears in 1 contract
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
13.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
13.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party in writing of such Asserted Liability right to defend the claim (without limiting the “Claim Notice”); provided, that no delay on the part right of the Indemnified Party Indemnitor to participate in giving the defense) and to charge the Indemnitor with the reasonable cost of any such Claim Notice defense, including reasonable attorneys' fees, and the Indemnitee shall relieve have the Indemnifying Party right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any terms reasonably approved by the Indemnitee.
13.3.3 Neither Newpark nor the Stockholders shall have any liability for breach of any indemnification obligation hereunder, warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced by such delayamount of all valid claims for breach of warranty or representation against it or them hereunder exceeds an aggregate of $50,000. Any Claim Notice In no event shall set forth, with as much specificity as is reasonably practicable, the basis liability of any of the claim Stockholders for any breach of warranty or representation hereunder exceed the Lossesvalue of the Newpark Shares for which his Company Shares are exchanged in the Exchange, for which purpose they shall be valued at their "Closing Value" (as defined in Section 18). To the section(s) of this Agreement that form the basis for such claimfullest extent permitted by law, copies of all material written materials relating to such claim and, and to the extent reasonably practicable, a reasonable estimate that such Stockholder continues to own any of the amount Newpark Shares, each Stockholder shall satisfy his liability hereunder by delivering to Newpark some or all of such Newpark Shares, valued at their Closing Value, and Newpark shall satisfy its liability by issuing additional Newpark Shares valued at their Closing Value. Nothing contained herein shall relieve any of the Losses that Stockholders or Newpark of any liability he or it may have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs intentional breach of representation or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld)warranty.
(b) 13.3.4 In calculating amounts payable to an Indemnified Party, determining the amount of any indemnified Losses damage, loss, liability, cost or expense suffered by Newpark which gives rise to liability of the Stockholders hereunder, there shall be determined without duplication taken into account the amount of any Tax benefits actually realized by Newpark and its subsidiaries attributable to such damage, loss, liability, cost or expense or derived therefrom in the same or any past or subsequent taxable period, also taking into account the Tax treatment of the receipt by Newpark of any payment from the Stockholders.
13.3.5 The rights and obligations of the parties under this Article 13 shall be the exclusive rights and obligations of the parties with respect to any breach of any representation or warranty in this Agreement and shall be in lieu of any other Loss for rights or remedies to which an the party entitled to indemnification claim has been made hereunder would otherwise be entitled as a result of such breach under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified PartyAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Newpark Resources Inc)
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
13.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
13.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld or delayed. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party in writing of such Asserted Liability right to defend the claim (without limiting the “Claim Notice”); provided, that no delay on the part right of the Indemnified Party Indemnitor to participate in giving the defense) and to charge the Indemnitor with the reasonable cost of any such Claim Notice defense, including reasonable attorneys' fees, and the Indemnitee shall relieve have the Indemnifying Party of right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any indemnification obligation hereunder, terms reasonably approved by the Indemnitee.
13.3.3 Neither Newpark nor the Stockholder Parties shall have any liability for breach or warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced by such delayamount of all valid claims for breach of warranty or representation against it or him hereunder exceeds an aggregate of $200,000. Any Claim Notice In no event shall set forth, with as much specificity as is reasonably practicable, the basis liability of any of the claim Stockholder Parties for any breach of warranty or representation hereunder exceed $1,000,000. To the Lossesfullest extent permitted by law, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, and to the extent reasonably practicablethe Stockholder Party continues to own shares of Newpark Common Stock, a reasonable estimate each Stockholder Party shall satisfy his liability hereunder by delivering to Newpark some or all of such Newpark Shares, valued at their Market Value as of the amount date of delivery, and Newpark shall satisfy its liability by issuing additional Newpark Shares valued at their Market Value as of the Losses that date of issuance. Nothing contained herein shall relieve any of the Stockholder Parties or Newpark of any liability he or it may have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs intentional breach of representation or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld)warranty.
(b) In calculating amounts payable to an Indemnified Party, the 13.3.4 The amount of any indemnified Losses damage, loss, liability, cost or expense claimed by Newpark against any Stockholder Party hereunder shall be determined without duplication of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received reduced by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax other benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount actually realized or received by Newpark and its subsidiaries attributable to such damage, loss, liability, cost or expense or derived therefrom in the Indemnified Partysame or any past or subsequent taxable period, and increased to the extent necessary to take into account any Tax actually incurred by Newpark as a result of the realization or receipt of any payment from such Stockholder Party and any such other benefit.
13.3.5 The rights and obligations of the parties under this Article 13 shall be the exclusive rights and obligations of the parties with respect to any breach of any representation, warranty or covenant in this Agreement and shall be in lieu of any other rights or remedies to which the party entitled to indemnification hereunder would otherwise be entitled as a result of such breach under this Agreement.
Appears in 1 contract
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
10.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
10.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party right to defend the claim (without limiting the right of the Indemnitor to participate in writing the defense) and to charge the Indemnitor with the reasonable cost of any such Asserted Liability (defense, including reasonable attorneys' fees, and the “Claim Notice”); Indemnitee shall have the right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any terms reasonably approved by the Indemnitee.
10.3.3 Except as herein provided, that no delay on neither Newpark nor the part Stockholders shall have any liability for breach of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced by such delayamount of all valid claims for breach of warranty or representation against it or them hereunder exceeds an aggregate of $10,000. Any Claim Notice shall set forth, with Except as much specificity as is reasonably practicableherein provided, the basis liability of any of the claim Stockholders for any breach of warranty or representation hereunder shall not exceed the Losses, the section(s) lesser of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate $1,000,000 or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption value of the defense Newpark Shares for which his Company Shares are exchanged in the Merger, for which purpose they shall be valued at their Closing Value. To the fullest extent permitted by law, Stockholders shall satisfy their liability hereunder by delivering to Newpark some or all of such Asserted Liability; providedNewpark Shares, howevervalued at their Closing Value, that the Indemnifying Party and Newpark shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all satisfy its liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, issuing additional Newpark Shares valued at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is requiredtheir Closing Value. Notwithstanding the foregoing, the Indemnified Party shall have limitations contained in the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party first two sentence of this Section shall not be liable apply to the indemnification obligations of the Stockholders under clause (iii) of Section 10.1 and nothing contained herein shall relieve any of the Stockholders or Newpark of any liability he or it may have for any settlement intentional breach of representation or warranty or for breach of any Asserted Liability covenants or agreements made herein by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld).
(b) 10.3.4 In calculating amounts payable to an Indemnified Party, determining the amount of any indemnified Losses damage, loss, liability, cost or expense suffered by Newpark which gives rise to liability of Stockholders hereunder, there shall be determined without duplication taken into account the amount of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement Tax benefits actually realized by Newpark and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect its subsidiaries attributable to such Lossesdamage, (ii) loss, liability, cost or expense or derived therefrom in the same or any prior past or subsequent recovery taxable period, also taking into account the Tax treatment of the receipt by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for Newpark of any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Partyfrom Stockholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Newpark Resources Inc)
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
13.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
13.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party in writing of such Asserted Liability right to defend the claim (without limiting the “Claim Notice”); provided, that no delay on the part right of the Indemnified Party Indemnitor to participate in giving the defense) and to charge the Indemnitor with the reasonable cost of any such Claim Notice defense, including reasonable attorneys' fees, and the Indemnitee shall relieve have the Indemnifying Party right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any terms reasonably approved by the Indemnitee.
13.3.3 Neither Newpark nor the Partners shall have any liability for breach of any indemnification obligation hereunder, warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced by such delayamount of all valid claims for breach of warranty or representation against it or them hereunder exceeds an aggregate of $50,000. Any Claim Notice In no event shall set forth, with as much specificity as is reasonably practicable, the basis liability of any of the claim Partners for any breach of warranty or representation hereunder exceed the Lossesvalue of the Newpark Shares for which such Partner's Interests are exchanged in the Exchange, for which purpose they shall be valued at their "Closing Value" (as defined in Section 18). To the section(s) of this Agreement that form the basis for such claimfullest extent permitted by law, copies of all material written materials relating to such claim and, and to the extent reasonably practicable, a reasonable estimate that such Partner continues to own any of the amount Newpark Shares, each Partner shall satisfy such Partner's liability hereunder by delivering to Newpark some or all of such Newpark Shares, valued at their Closing Value, and Newpark shall satisfy its liability by issuing additional Newpark Shares valued at their Closing Value. Nothing contained herein shall relieve any of the Losses that Partners or Newpark of any liability he or it may have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs intentional breach of representation or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld)warranty.
(b) 13.3.4 In calculating amounts payable to an Indemnified Party, determining the amount of any indemnified Losses damage, loss, liability, cost or expense suffered by Newpark which gives rise to liability of the Partners hereunder, there shall be determined without duplication taken into account the amount of any Tax benefits actually realized by Newpark and its subsidiaries attributable to such damage, loss, liability, cost or expense or derived therefrom in the same or any past or subsequent taxable period, also taking into account the Tax treatment of the receipt by Newpark of any payment from the Partners.
13.3.5 The rights and obligations of the parties under this Article 13 shall be the exclusive rights and obligations of the parties with respect to any breach of any representation or warranty in this Agreement and shall be in lieu of any other Loss for rights or remedies to which an the party entitled to indemnification claim has been made hereunder would otherwise be entitled as a result of such breach under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified PartyAgreement.
Appears in 1 contract
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
10.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
10.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party in writing of such Asserted Liability right to defend the claim (without limiting the “Claim Notice”); provided, that no delay on the part right of the Indemnified Party Indemnitor to participate in giving the defense) and to charge the Indemnitor with the reasonable cost of any such Claim Notice defense, including reasonable attorneys' fees, and the Indemnitee shall relieve have the Indemnifying Party right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any terms reasonably approved by the Indemnitee.
10.3.3 Neither Newpark nor the Stockholders shall have any liability for breach of any indemnification obligation hereunder, warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced amount of all valid claims for breach of warranty or representation against it or them hereunder exceeds an aggregate of $25,000. In no event shall the liability of any of the Stockholders for any breach of warranty or representation hereunder exceed the value of the Newpark Shares for which his Target Shares are exchanged in the Exchange, for which purpose they shall be valued at their Closing Value. To the fullest extent permitted by law, Stockholders shall satisfy their liability hereunder by delivering to Newpark some or all of such Newpark Shares, valued at their Closing Value, and Newpark shall satisfy its liability by issuing additional Newpark Shares valued at their Closing Value. Nothing contained herein shall relieve any of the Stockholders or Newpark of any liability he or it may have for any intentional breach of representation or warranty or for breach of any covenants or agreements made herein by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld).
(b) 10.3.4 In calculating amounts payable to an Indemnified Party, determining the amount of any indemnified Losses damage, loss, liability, cost or expense suffered by Newpark which gives rise to liability of Stockholders hereunder, there shall be determined without duplication taken into account the amount of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement Tax benefits actually realized by Newpark and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect its subsidiaries attributable to such Lossesdamage, (ii) loss, liability, cost or expense or derived therefrom in the same or any prior past or subsequent recovery taxable period, also taking into account the Tax treatment of the receipt by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for Newpark of any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Partyfrom Stockholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Newpark Resources Inc)
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third party involving a claim for which a party required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification (an “Indemnified Party”) hereunder (an “Asserted Liability”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability (the “Claim Notice”); provided, provided that no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, hereunder except to the extent that the Indemnifying Party is materially prejudiced by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that which form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicableknown, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified PartyParty within 30 days of receipt of such notice and upon its acknowledgement of its obligation to indemnify the Indemnified Party with respect to such Asserted Liability, will be entitled to assume the defense of such Asserted Liability with counsel of its own choosing and, in such an event (i) the Indemnifying Party will be entitled to assume and control the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that if there exists a material conflict of interest (other than one that is of a monetary nature) that would make it inappropriate for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel, at the expense of the Indemnifying Party, provided that the Indemnifying Party shall not be obligated to pay the reasonable fees and expenses of more than one separate counsel for all Indemnified Parties, taken together. If the Indemnifying Party undertakes to defend against such Asserted Liability, (i) the Indemnified Party shall reasonably cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) the Indemnified Party shall not settle or compromise such Asserted Liability without the prior written consent of the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability which the Indemnifying Party shall have undertaken to defend so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve compromise or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability claim and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such shall not assume the defense of any Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not will be entitled to assume the defense and prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of otherwise pursue such Asserted Liability, in whole or in part; provided, however, that in taking any action with respect to such Asserted Liability, it shall act reasonably and in good faith.
(b) In the event that an Indemnified Party has a claim against the Indemnifying Party for indemnification hereunder that does not involve an Asserted Liability, the Indemnified Party shall not be liable for any settlement send a Claims Notice to the Indemnifying Party in accordance with the provisions of Section 9.4(a) with respect to such Asserted Liability without its written consent (which consent shall not be unreasonably withheld)claim.
(bc) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be actually received by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent actual recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by of the Indemnified Party with respect to such LossesLosses to the extent actually received in the form of a reduction in Taxes otherwise payable by the Indemnified Party or its Affiliates. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIIIIX, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Party. If an Indemnified Party actually receives such a Tax benefit subsequent to the payment of any indemnified Losses, then the Indemnified Party shall promptly make a payment to the Indemnifying Party if, when and to the extent such Tax benefit is actually received.
(d) Notwithstanding any other provision of this Agreement, in no event shall any Indemnified Party be entitled to indemnification pursuant to this Article IX, or to make a claim for breach of any other provision of this Agreement or to any other remedy at Law or in equity, to the extent any Losses were attributable to such Indemnified Party’s own gross negligence or willful misconduct. The Indemnified Party shall take all commercially reasonable steps to mitigate any Losses upon and after becoming aware of any facts, matters, failures or circumstances that would reasonably be expected to result in any Losses that are indemnifiable hereunder, and any Indemnified Parties’ failure to take, or cause to be taken, such commercially reasonable steps shall be taken into account in determining the amount of Losses for which such Indemnified Party is entitled to indemnification hereunder.
(e) To the extent that the Indemnifying Party makes any payment pursuant to this Article IX in respect of Losses for which the Indemnified Party or any of its Affiliates have a right to recover against a third party (including an insurance company), the Indemnifying Party shall be subrogated to the right of the Indemnified Party or any of its Affiliates to seek and obtain recovery from such third party; provided, however, that if the Indemnifying Party shall be prohibited from such subrogation, the Indemnified Party or its Affiliates, as applicable, shall seek recovery from such third party on the Indemnifying Party’s behalf and pay any such recovery, net of its expenses, to the Indemnifying Party.
(f) Notwithstanding any other provision of this Agreement, in no event shall an Indemnifying Party be liable under this Article IX for any punitive, treble or special damages (except to the extent such types of damages constitute Losses to a third party as a result of an Asserted Liability).
(g) Except as provided in Sections 6.4(c) and Section 10.13, the remedies provided in this Article IX and Section 6.11(a) shall be deemed the sole and exclusive remedies of the parties, from and after the Closing Date, with respect to this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
10.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
10.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party in writing of such Asserted Liability right to defend the claim (without limiting the “Claim Notice”); provided, that no delay on the part right of the Indemnified Party Indemnitor to participate in giving the defense) and to charge the Indemnitor with the reasonable cost of any such Claim Notice defense, including reasonable attorneys' fees, and the Indemnitee shall relieve have the Indemnifying Party right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any terms reasonably approved by the Indemnitee.
10.3.3 Neither Newpark nor Stockholder shall have any liability for breach of any indemnification obligation hereunder, warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies amount of all material written materials relating to such claim and, to valid claims for breach of warranty or representation against it or him hereunder exceeds an aggregate of $10,000. In no event shall the extent reasonably practicable, a reasonable estimate liability of Stockholder for any breach of warranty or representation hereunder exceed the amount lesser of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate $1,000,000 or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party value of the Newpark Shares for which his Company Shares are exchanged in the Merger, for which purpose they shall be valued at their Closing Value. To the fullest extent permitted by law, Stockholder shall satisfy his liability hereunder by delivering to Newpark some or all of such Newpark Shares, valued at their Closing Value, and Newpark shall satisfy its liability by issuing additional Newpark Shares valued at their Closing Value. Nothing contained herein shall relieve Stockholder or Newpark of any liability he or it may have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs intentional breach of representation or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve warranty or consent to the entry for breach of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim covenants or has been actually threatened to be agreements made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied herein by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld).
(b) 10.3.4 In calculating amounts payable to an Indemnified Party, determining the amount of any indemnified Losses damage, loss, liability, cost or expense suffered by Newpark which gives rise to liability of Stockholder hereunder, there shall be determined without duplication taken into account the amount of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement Tax benefits actually realized by Newpark and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect its subsidiaries attributable to such Lossesdamage, (ii) loss, liability, cost or expense or derived therefrom in the same or any prior past or subsequent recovery taxable period, also taking into account the Tax treatment of the receipt by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for Newpark of any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Partyfrom Stockholder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Newpark Resources Inc)
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third The following provisions shall apply to all indemnification and hold harmless provisions of this Agreement:
13.3.1 No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder shall, with reasonable promptness, provide the other party (an “Asserted Liability”)the "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the Indemnitor all material relevant information. The Indemnitor shall have the right to defend any such claim at its expense, with counsel of its choosing, and the Indemnitee shall have the right, at its expense, using counsel of its choosing, to join in the defense of any such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by the Indemnitee against the Indemnitor except to the extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnitor.
13.3.2 Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the written consent of the other, which shall not be unreasonably withheld. The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to it of such suit, to take action to defend the same, the Indemnified Party Indemnitee shall promptly notify have the Indemnifying Party in writing of such Asserted Liability right to defend the claim (without limiting the “Claim Notice”); provided, that no delay on the part right of the Indemnified Party Indemnitor to participate in giving the defense) and to charge the Indemnitor with the reasonable cost of any such Claim Notice defense, including reasonable attorneys' fees, and the Indemnitee shall relieve have the Indemnifying Party right, after notifying but without consulting the Indemnitor, to settle or compromise such claim on any terms reasonably approved by the Indemnitee.
13.3.3 Neither Newpark nor the Stockholders shall have any liability for breach of any indemnification obligation hereunder, warranty or representation hereunder except to the extent that the Indemnifying Party is prejudiced by such delayamount of all valid claims for breach of warranty or representation against it or them hereunder exceeds an aggregate of $50,000. Any Claim Notice This $50,000 floor does not apply to the Stockholders' liability under Paragraph 13.1(b). In no event shall set forth, with as much specificity as is reasonably practicable, the basis liability of any of the claim Stockholders for any breach of warranty or representation hereunder exceed the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate value of the amount Newpark Shares for which his Target Shares are exchanged in the Exchange, for which purpose they shall be valued at their Closing Value. To the fullest extent permitted by law, Stockholders shall satisfy their liability hereunder by delivering to Newpark some or all of such Newpark Shares, valued at their Closing Value, and Newpark shall satisfy its liability by issuing additional Newpark Shares valued at their Closing Value. Nothing contained herein shall relieve any of the Losses that Stockholders or Newpark of any liability he or it may have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs intentional breach of representation or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld)warranty.
(b) 13.3.4 In calculating amounts payable to an Indemnified Party, determining the amount of any indemnified Losses damage, loss, liability, cost or expense suffered by Newpark which gives rise to liability of the Stockholders hereunder, there shall be determined without duplication taken into account the amount of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement Tax benefits actually realized by Newpark and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect its subsidiaries attributable to such Lossesdamage, (ii) loss, liability, cost or expense or derived therefrom in the same or any prior past or subsequent recovery taxable period, also taking into account the Tax treatment of the receipt by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for Newpark of any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by from the Indemnified PartyStockholders.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Newpark Resources Inc)
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third party involving a claim for which a party required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification (an “Indemnified Party”) hereunder (an “Asserted Liability”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability (the “Claim Notice”); provided, that no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, except to the extent that the Indemnifying Party is prejudiced by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an event, (i) the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld).
(b) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified Party.
(c) Notwithstanding any other provision of this Agreement, in no event shall any Indemnified Party be entitled to indemnification pursuant to this Article VIII, or to make a claim for breach of any other provision of this Agreement or to any other remedy at Law or in equity, (i) if such Indemnified Party has expressly waived in writing the breach of or inaccuracy in a representation or warranty or the failure to perform a covenant or agreement made by the other party, which, for purposes of clarification, shall not include any implied waiver resulting from the Closing or otherwise, (ii) with respect to any Liability that was the subject of a dispute submitted to, and resolved by, the Independent Accounting Firm pursuant to Section 2.3(f) or that was resolved by written agreement of the parties pursuant to Section 2.3(f) or (iii) to the extent any Losses were attributable to such Indemnified Party’s own fraud, gross negligence or willful misconduct. The Indemnified Party shall take all reasonable steps to mitigate any Losses upon and after becoming aware of any facts, matters, failures or circumstances that would reasonably be expected to result in any Losses that are indemnifiable hereunder. In the event the Indemnified Party shall fail to take, or cause to be taken, such reasonable steps, then notwithstanding anything in this Agreement to the contrary, the Indemnifying Party shall not be required to indemnify the Indemnified Party for that portion of Losses that could reasonably have been expected to have been avoided if the Indemnified Party had taken such commercially reasonable steps.
(d) To the extent that the Indemnifying Party makes any payment pursuant to this Article VIII in respect of Losses for which the Indemnified Party or any of its Affiliates have a right to recover against a third party (including an insurance company), the Indemnifying Party shall be subrogated to the right of the Indemnified Party or any of its Affiliates to seek and obtain recovery from such third party; provided, however, that if the Indemnifying Party shall be prohibited from such subrogation, the Indemnified Party or its Affiliates, as applicable, shall seek recovery from such third party on the Indemnifying Party’s behalf and pay any such recovery to the Indemnifying Party.
(e) Notwithstanding any other provision of this Agreement, in no event shall Seller or Purchaser be liable under this Article VIII for any punitive, incidental, indirect, treble, special or consequential damages.
(f) Any indemnification payments made pursuant to this Agreement shall be treated for Tax purposes as an adjustment to the Purchase Price, unless otherwise required by applicable Law.
(g) Except in the case of fraud or willful misconduct and except as set forth in Section 5.4, Section 5.9 and Section 5.10(b), the remedies provided in this Article VIII shall be deemed the sole and exclusive remedies of the parties, from and after the Closing Date, with respect to this Agreement and the transactions contemplated hereby; provided, that the foregoing shall not prevent or prohibit any party hereto from seeking specific performance, injunctive relief or any other equitable remedy.
Appears in 1 contract
Indemnification Procedures and Limitations. (a) In the event that any Action is commenced by a third party involving a claim for which a party required Upon seeking indemnification pursuant to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a party entitled to indemnification this Section 7 (an “Indemnified Party”) hereunder (an “Asserted Liability”), the Indemnified Party Purchaser shall promptly notify the Indemnifying Party in writing of such Asserted Liability give notice to AIG (the “Indemnifying Party”) of any claim for which it is seeking indemnity under this Section 7 (a “Claim”) containing a description of the facts alleged to constitute the basis for the Claim, the amount of actual and reasonably anticipated Adverse Consequences sought thereunder (to the extent known by the Indemnifying Party) and any other material details pertaining to the Claim (the “Indemnification Notice”); provided, that no delay on the part of the Indemnified Party in giving any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, except to the extent that .
(b) So long as the Indemnifying Party is prejudiced by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume conducting the defense of such Asserted Liability, in whole or in part, at its own cost, with counsel of its own choosing and, in such an eventthe Claim, (i) the Indemnifying Indemnified Party will be entitled to prosecutemay retain separate co-counsel at its sole cost and expense and participate in the defense of the Claim, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for will not consent to the entry of any attorneys’ fees, investigation costs judgment or litigation expenses incurred by enter into any settlement with respect to the Indemnified Party after Claim without the assumption prior written consent of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not(not to be unreasonably withheld, conditioned or delayed) and (iii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Claim without the prior written consent of the Indemnified PartyParty (not to be unreasonably withheld, settleconditioned or delayed).
(c) In the event the Indemnifying Party does not assume the defense of the Claim (i) the Indemnified Party may defend against the Claim, compromise, resolve or (ii) the Indemnified Party will not consent to the entry of any judgment in or enter into any settlement with respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim Claim or has been actually threatened admit to be made a party thereto unless such settlement, compromise, resolution or any liability with respect to the Claim without the prior written consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes (not to defend against such Asserted Liabilitybe unreasonably withheld, conditioned or delayed), (iii) the Indemnifying Party will reimburse the Indemnified Party shall: for the costs of defending against the Claim (iincluding reasonable attorneys’ fees and expenses) fully cooperate with when the Claim has been finally determined and (iv) the Indemnifying Party and its counsel will remain responsible for any Adverse Consequences the Indemnified Party may suffer arising out of, resulting from, relating to, or caused by the Claim, in the investigationeach case, defense and settlement thereof and (ii) have the right, at its own cost and expense, to participate in the defense of any Asserted Liability with counsel selected by it (and reasonably satisfactory to the Indemnifying Party) subject to the Indemnifying Party’s right to control the defense thereofprovisions of this Section 7. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted LiabilityA Claim, and the Indemnified Party shall not be liable liability for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld).
(b) In calculating amounts payable to an Indemnified Party, the and amount of any indemnified Losses damages therefor, shall be deemed to be “finally determined” for purposes of this Section 7 when the parties hereto have so determined without duplication of any other Loss for which an indemnification claim by mutual agreement or, if disputed, when a final non-appealable judgement has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or reasonably expected to be received by the Indemnified Party under any insurance policy entered into with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified PartyClaim.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Corebridge Financial, Inc.)
Indemnification Procedures and Limitations. The following provision shall apply to all indemnification and hold harmless provisions of this Agreement:
(a) In the event that any Action is commenced by a third No party involving a claim for which a party shall be required to provide indemnification hereunder (an “Indemnifying Party”) may be liable to a indemnify another pursuant hereto unless the party entitled to seeking indemnification (an “Indemnified Party”the "Indemnitee") hereunder (an “Asserted Liability”)shall, with reasonable promptness, provide the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Asserted Liability other party (the “Claim Notice”); provided, that no delay on "Indemnitor") with copies of any claims or other documents received and shall otherwise make available to the part of Indemnitor all material relevant information. The Indemnitor shall have the Indemnified Party in giving right to defend any such Claim Notice shall relieve the Indemnifying Party of any indemnification obligation hereunder, except to the extent that the Indemnifying Party is prejudiced by such delay. Any Claim Notice shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for the Losses, the section(s) of this Agreement that form the basis for such claim, copies of all material written materials relating to such claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Losses that have been or may be incurred by the Indemnified Party. The Indemnifying Party, upon giving written notice to such Indemnified Party, will be entitled to assume the defense of such Asserted Liability, in whole or in part, at its own costexpense, with counsel of its own choosing andchoosing, in such an event, (i) and the Indemnifying Party will be entitled to prosecute, appeal, negotiate, resolve, settle, compromise, arbitrate or otherwise pursue such Asserted Liability and (ii) the Indemnifying Party Indemnitee shall have no obligation to indemnify or pay for or reimburse any Indemnified Party for any attorneys’ fees, investigation costs or litigation expenses incurred by the Indemnified Party after the assumption of the defense of such Asserted Liability; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise, resolve or consent to the entry of any judgment in respect of any Asserted Liability if any Indemnified Party is a party to the applicable claim or has been actually threatened to be made a party thereto unless such settlement, compromise, resolution or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Asserted Liability and provides solely for monetary relief to be satisfied by the Indemnifying Party. If the Indemnifying Party undertakes to defend against such Asserted Liability, the Indemnified Party shall: (i) fully cooperate with the Indemnifying Party and its counsel in the investigation, defense and settlement thereof and (ii) have the right, at its own cost and expense, using counsel of its choosing, to participate join in the defense of any Asserted Liability with counsel selected such claim. The Indemnitee's failure to give prompt notice or to provide copies of documents or to furnish relevant data shall not constitute a defense in whole or in part to any claim by it (and reasonably satisfactory the Indemnitee against the Indemnitor except to the Indemnifying Party) subject extent that such failure by the Indemnitee shall result in a material prejudice to the Indemnifying Party’s right to control Indemnitor.
(b) Except as hereinafter provided, neither party shall settle or compromise any such claim unless it shall first obtain the defense thereof. The fees and disbursements of such counsel shall be at the expense written consent of the Indemnified Partyother, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Notwithstanding the foregoing, the Indemnified Party shall have the right to control, pay or settle any Asserted Liability that the Indemnifying Party shall have undertaken to defend, so long as the Indemnified Party shall also waive any right to indemnification therefor by the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any Asserted Liability by an Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, upon notice to the Indemnifying Party by the Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense or control of a Asserted Liability and shall pay the fees and expenses of counsel retained by the Indemnified Party hereunder if (x) such Asserted Liability relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (y) such Asserted Liability seeks injunctive or other equitable relief against the Indemnified Party, provided that, in any such case, the party against which the Asserted Liability is asserted hereunder shall have the right to retain its own counsel (but the fees and expenses of such counsel shall be at the expense of such party) and participate in the defense of such Asserted Liability, and the Indemnified Party shall not be liable for any settlement of such Asserted Liability without its written consent (which consent shall not be unreasonably withheld).
(b) In calculating amounts payable . The foregoing notwithstanding, if suit shall have been instituted against the Indemnitee and the Indemnitor shall have failed, after the lapse of a reasonable time after written notice to an Indemnified Partyit of such suit, to take action to defend the same, the amount Indemnitee shall have the sole right to defend the claim and to charge the Indemnitor with the reasonable cost of any indemnified Losses such defense, including reasonable attorneys' fees, and the Indemnitee shall be determined have the right, after notifying but without duplication of consulting the Indemnitor, to settle or compromise such claim on any other Loss for which an indemnification claim has been made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments received or terms reasonably expected to be received approved by the Indemnified Party under any insurance policy with respect to such Losses, (ii) any prior or subsequent recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any net Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Losses. If an Indemnified Party realizes a Tax benefit or receives an amount under insurance coverage with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article VIII, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Indemnified PartyIndemnitee.
Appears in 1 contract
