Indemnification Procedures for Claims. The following procedures shall be applicable with respect to the indemnification obligations of a party hereunder in respect of any claims, demands, actions or causes of action (each a “Claim”) asserted or brought by any third parties, including any present or former employees of any party: (a) Promptly after receipt by the party seeking indemnification hereunder (the “Indemnitee”) of written notice of the assertion or the commencement of any Claim, whether by legal process or otherwise, with respect to any matter within the scope of this Article VI, the Indemnitee shall give written notice thereof (a “Notice”) to the party from whom indemnification is to be sought hereunder (the “Indemnitor”) and shall thereafter keep the Indemnitor reasonably informed with respect thereto; provided, however, that the failure of the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of its indemnification obligations hereunder, unless such failure results in (i) a default judgment, (ii) the expiration of the time to answer a complaint or (iii) material prejudice to the Indemnitor’s defense of such Claim. In case any such Claim is brought against any Indemnitee, the Indemnitor shall be entitled to assume the defense thereof, by giving the Indemnitee written notice of its intention to do so within 30 days after receipt of the Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor’s sole cost and expense; provided, Indemnitor diligently pursues such defense, and; provided, further, that the Indemnitor shall not be entitled to assume the defense if the named parties to any such Claim (including any impleaded parties) include both the Indemnitee and Indemnitor, and the Indemnitee shall have been advised by such counsel that there is one or more legal defenses available to it that are in addition to or in conflict with those available to the Indemnitor. If the Indemnitor shall assume the defense of such Claim, it shall not settle such Claim without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld) unless such settlement includes an unconditional release of the Indemnitee from all liability arising out of such Claim and imposes no obligations on the Indemnitee. Notwithstanding the assumption by the Indemnitor of the defense of any Claim as provided in this Section 6.3, the Indemnitee shall be permitted to participate in the defense of such Claim and to employ counsel at its own expense. (b) If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense of any such Claim within the prescribed period of time, or shall not be entitled to assume the defense of any such Claim (including by failure to diligently pursue defense of such Claim), then the Indemnitee shall control and conduct the defense of any such Claim, at the cost and expense of the Indemnitor, in which event it may do so in such manner as it may deem appropriate acting in a reasonable and good faith manner; provided, however, that it shall not settle any Claim that would give rise to liability on the part of the Indemnitor under this Article VI without the prior written consent of the Indemnitor. The Indemnitor shall be permitted to participate in the defense of such Claim and to employ counsel at its own expense.
Appears in 1 contract
Samples: Contribution Agreement (Petroleum Development Corp)
Indemnification Procedures for Claims. The following procedures (a) A Person entitled to indemnification pursuant to Section 6.01 will hereinafter be referred to as an “Indemnitee.” A Party obligated to indemnify an Indemnitee hereunder will hereinafter be referred to as an “Indemnitor.”
(b) Indemnitee shall be applicable with respect to the indemnification obligations of a party hereunder in respect inform Indemnitor of any claims, demands, actions or causes of action Third Party claim (each a “Claim”) asserted or brought by any third partiesas soon as reasonably practicable after the Claim arises, including any present or former employees it being understood and agreed that the failure to give such notice will not relieve the Indemnitor of any party:its indemnification obligation under this Agreement except and only to the extent that such Indemnitor is actually and materially prejudiced as a result of such failure to give notice.
(ac) Promptly after receipt If the Indemnitor has acknowledged in writing to the Indemnitee the Indemnitor’s responsibility for defending such Claim and such Claim is not a class action or criminal matter, nor an Action seeking injunctive relief, the Indemnitor shall have the right to defend, at its sole cost and expense (with counsel reasonably selected by the party seeking indemnification hereunder (Indemnitor and approved by the “Indemnitee”) of written notice , such approval not to be unreasonably withheld or delayed), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnitor to a final conclusion or settled at the discretion of the assertion or the commencement of any Claim, whether by legal process or otherwise, with respect to any matter within the scope of this Article VI, the Indemnitee shall give written notice thereof (a “Notice”) to the party from whom indemnification is to be sought hereunder (the “Indemnitor”) and shall thereafter keep the Indemnitor reasonably informed with respect thereto; provided, however, that the failure of the Indemnitee to give the Indemnitor prompt notice as provided herein shall may not relieve the Indemnitor of its indemnification obligations hereunder, enter into any compromise or settlement unless such failure results in (i) such compromise or settlement includes as an unconditional term thereof, the giving by each claimant or plaintiff to the Indemnitee of a default judgment, release from all liability in respect of such Claim; and (ii) the expiration of the time Indemnitee consents to answer a complaint such compromise or (iii) material prejudice to the Indemnitor’s defense of such Claim. In case any such Claim is brought against any Indemniteesettlement, the Indemnitor shall be entitled to assume the defense thereof, by giving the Indemnitee written notice of its intention to do so within 30 days after receipt of the Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor’s sole cost and expense; provided, Indemnitor diligently pursues such defense, and; provided, further, that the Indemnitor shall not be entitled to assume the defense if the named parties to any such Claim (including any impleaded parties) include both the Indemnitee and Indemnitor, and the Indemnitee shall have been advised by such counsel that there is one or more legal defenses available to it that are in addition to or in conflict with those available to the Indemnitor. If the Indemnitor shall assume the defense of such Claim, it shall not settle such Claim without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld) withheld or delayed unless such compromise or settlement includes an unconditional release involves (A) any admission of legal wrongdoing by the Indemnitee, (B) any payment by the Indemnitee from all liability arising out that is not indemnified hereunder or (C) the imposition of such Claim and imposes no obligations on any equitable relief against the Indemnitee, in which case ((A) – (C)) the Indemnitee may withhold its consent in its sole discretion. Notwithstanding the assumption by the Indemnitor of If Indemnitee determines in good faith that the defense of any Claim as provided is not being or ceases to be conducted diligently and in this Section 6.3good faith, the Indemnitee shall be permitted have the right, at the expense of the Indemnitor, upon at least ten (10) Business Days’ (or earlier if reasonably necessary to participate in appropriately defend the Claim) prior written notice to the Indemnitor of its intent to do so, to undertake the defense of such Claim for the account of the Indemnitor (with counsel reasonably selected by the Indemnitee and approved by the Indemnitor, such approval not to employ counsel at its own expense.
(bbe unreasonably withheld or delayed). If the Indemnitee is defending such Claim, the Indemnitee shall keep the Indemnitor apprised of all material developments with respect to such Claim and promptly provide the Indemnitor with copies of all correspondence and documents exchanged by the Indemnitee and the opposing party(ies) to such litigation. If the Indemnitor shall fail has elected to notify defend such Claim or if the Indemnitor has otherwise acknowledged in writing its responsibility for indemnifying a Claim, the Indemnitee of its desire to assume the defense of any may not compromise or settle such Claim within the prescribed period of time, or shall not be entitled to assume the defense of any such Claim (including by failure to diligently pursue defense of such Claim), then the Indemnitee shall control and conduct the defense of any such Claim, at the cost and expense of the Indemnitor, in which event it may do so in such manner as it may deem appropriate acting in a reasonable and good faith manner; provided, however, that it shall not settle any Claim that would give rise to liability on the part of the Indemnitor under this Article VI litigation without the prior written consent of the Indemnitor. , such consent not to be unreasonably withheld or delayed.
(d) The Indemnitee may participate in, but not control, any defense or settlement of any Claim controlled by the Indemnitor pursuant to this Section 6.02 and shall bear its own costs and expenses with respect to such participation; provided, however, that the Indemnitor shall bear such costs and expenses if counsel for the Indemnitor shall have reasonably determined that such counsel may not properly represent both the Indemnitor and the Indemnitee.
(e) A claim for indemnification for any matter not involving a Claim may be permitted asserted by written notice to participate the Indemnitor. Such notice shall include the facts constituting the basis for such claim for indemnification, the Sections of this Agreement upon which such claim for indemnification is then based and an estimate, if possible, of the amount of Damages suffered by the Indemnitee; provided, that the failure to give such notification or any deficiency in such notification will not relieve such Indemnitor from any obligations under this Article VI, except (i) to the defense of extent such Claim failure to give such notification or any deficiency in such notification actually and to employ counsel at its own expensematerially prejudices such Indemnitor or (ii) as provided in Section 6.04.
Appears in 1 contract
Indemnification Procedures for Claims. The following procedures shall be applicable with respect to the indemnification obligations Party claiming indemnity under Section 14.1 or 14.2, either on behalf of a party hereunder in respect of any claims, demands, actions itself or causes of action (each a “Claim”) asserted or brought by any third parties, including any present or former employees of any party:
(a) Promptly after receipt by the party seeking indemnification hereunder (the “Indemnitee”) of written notice of the assertion or the commencement of any Claim, whether by legal process or otherwiseits Indemnified Party, with respect to any matter within the scope of this Article VIa particular Third Party Claim against such Indemnified Party, the Indemnitee shall give written notice thereof (a “Notice”) to the party Party from whom indemnification indemnity hereunder is to be being sought hereunder (the “IndemnitorIndemnifying Party”, as to such Claim) promptly after learning of such Claim, however, that the failure or delay by an Indemnified Party to give such notice of a Claim shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure or delay to give notice. The Indemnified Party shall provide the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with the defense of the Claim for which indemnity is being sought. The Indemnified Party (and shall thereafter keep the Indemnitor reasonably informed including such Party) may participate in and monitor such defense with respect theretocounsel of its own choosing at its own expense; provided, however, that the failure of Indemnifying Party shall have the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of its indemnification obligations hereunder, unless such failure results in (i) a default judgment, (ii) the expiration of the time to answer a complaint or (iii) material prejudice to the Indemnitor’s defense of such Claim. In case any such Claim is brought against any Indemnitee, the Indemnitor shall be entitled right to assume the defense thereof, by giving the Indemnitee written notice of its intention to do so within 30 days after receipt of the Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor’s sole cost and expense; provided, Indemnitor diligently pursues such defense, and; provided, further, that the Indemnitor shall not be entitled to assume the defense if the named parties to any such Claim (including any impleaded parties) include both the Indemnitee and Indemnitor, and the Indemnitee shall have been advised by such counsel that there is one or more legal defenses available to it that are in addition to or in conflict with those available to the Indemnitor. If the Indemnitor shall assume conduct the defense of such Claim, it the Claim with counsel of its choice. The Indemnifying Party shall not settle any such Claim without the prior written consent of the Indemnitee Indemnified Party (which such consent shall not to be unreasonably withheld) , conditioned, or delayed), unless such the settlement includes an unconditional release involves only the payment of the Indemnitee from all liability arising out money, and no admission of such Claim and imposes no obligations on the Indemnitee. Notwithstanding the assumption wrong-doing or fault by the Indemnitor of Indemnified Party. So long as the defense of any Indemnifying Party is actively defending the Claim as provided in this Section 6.3good faith, the Indemnitee shall be permitted to participate in the defense of such Claim and to employ counsel at its own expense.
(b) If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense of any such Claim within the prescribed period of time, or shall not be entitled to assume the defense of any such Claim (including by failure to diligently pursue defense of such Claim), then the Indemnitee shall control and conduct the defense of any such Claim, at the cost and expense of the Indemnitor, in which event it may do so in such manner as it may deem appropriate acting in a reasonable and good faith manner; provided, however, that it Indemnified Party shall not settle any such Claim that would give rise to liability on the part of the Indemnitor under this Article VI without the prior written consent of the IndemnitorIndemnifying Party. The Indemnitor shall be permitted to participate in If the Indemnifying Party does not assume and conduct the defense of such the Claim as provided above, (i) the Indemnified Party may defend against, and consent to employ counsel the entry of any judgment or enter into any settlement with respect to the Claim in any manner the Indemnified Party may deem reasonably appropriate, all at its own expenseIndemnifying Party’s cost and expense (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (ii) the Indemnifying Party will remain responsible to indemnify and hold harmless the Indemnified Party as provided in this Article 14.
Appears in 1 contract
Samples: Collaboration and License Agreement (Mirati Therapeutics, Inc.)
Indemnification Procedures for Claims. The following procedures (a) A Person entitled to indemnification pursuant to Section 8.01 will hereinafter be referred to as an “Indemnitee.” A Party obligated to indemnify an Indemnitee hereunder will hereinafter be referred to as an “Indemnitor.”
(b) Indemnitee shall be applicable with respect to the indemnification obligations of a party hereunder in respect inform Indemnitor of any claims, demands, actions or causes of action Third Party claim (each a “Claim”) asserted or brought by any third partiesas soon as reasonably practicable after the Claim arises, including any present or former employees it being understood and agreed that the failure to give such notice will not relieve the Indemnitor of any party:its indemnification obligation under this Agreement except and only to the extent that such Indemnitor is actually and materially prejudiced as a result of such failure to give notice.
(ac) Promptly after receipt If the Indemnitor has acknowledged in writing to the Indemnitee the Indemnitor’s responsibility for defending such Claim and such Claim is not a class action or criminal matter, nor an Action seeking injunctive relief, the Indemnitor shall have the right to defend, at its sole cost and expense (with counsel reasonably selected by the party seeking indemnification hereunder (Indemnitor and approved by the “Indemnitee”) of written notice , such approval not to be unreasonably withheld or delayed), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnitor to a final conclusion or settled at the discretion of the assertion or the commencement of any Claim, whether by legal process or otherwise, with respect to any matter within the scope of this Article VI, the Indemnitee shall give written notice thereof (a “Notice”) to the party from whom indemnification is to be sought hereunder (the “Indemnitor”) and shall thereafter keep the Indemnitor reasonably informed with respect thereto; provided, however, that the failure of the Indemnitee to give the Indemnitor prompt notice as provided herein shall may not relieve the Indemnitor of its indemnification obligations hereunder, enter into any compromise or settlement unless such failure results in (i) such compromise or settlement includes as an unconditional term thereof, the giving by each claimant or plaintiff to the Indemnitee of a default judgment, release from all liability in respect of such Claim; and (ii) the expiration of the time Indemnitee consents to answer a complaint such compromise or (iii) material prejudice to the Indemnitor’s defense of such Claim. In case any such Claim is brought against any Indemniteesettlement, the Indemnitor shall be entitled to assume the defense thereof, by giving the Indemnitee written notice of its intention to do so within 30 days after receipt of the Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor’s sole cost and expense; provided, Indemnitor diligently pursues such defense, and; provided, further, that the Indemnitor shall not be entitled to assume the defense if the named parties to any such Claim (including any impleaded parties) include both the Indemnitee and Indemnitor, and the Indemnitee shall have been advised by such counsel that there is one or more legal defenses available to it that are in addition to or in conflict with those available to the Indemnitor. If the Indemnitor shall assume the defense of such Claim, it shall not settle such Claim without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld) withheld or delayed unless such compromise or settlement includes an unconditional release involves (A) any admission of legal wrongdoing by the Indemnitee, (B) any payment by the Indemnitee from all liability arising out that is not indemnified hereunder or (C) the imposition of such Claim and imposes no obligations on any equitable relief against the Indemnitee, in which case ((A) – (C)) the Indemnitee may withhold its consent in its sole discretion. Notwithstanding the assumption by the Indemnitor of If Indemnitee determines in good faith that the defense of any Claim as provided is not being or ceases to be conducted diligently and in this Section 6.3good faith, the Indemnitee shall be permitted have the right, at the expense of the Indemnitor, upon at least ten (10) Business Days’ (or earlier if reasonably necessary to participate in appropriately defend the Claim) prior written notice to the Indemnitor of its intent to do so, to undertake the defense of such Claim for the account of the Indemnitor (with counsel reasonably selected by the Indemnitee and approved by the Indemnitor, such approval not to employ counsel at its own expense.
(bbe unreasonably withheld or delayed). If the Indemnitee is defending such Claim, the Indemnitee shall keep the Indemnitor apprised of all material developments with respect to such Claim and promptly provide the Indemnitor with copies of all correspondence and documents exchanged by the Indemnitee and the opposing party(ies) to such litigation. If the Indemnitor shall fail has elected to notify defend such Claim or if the Indemnitor has otherwise acknowledged in writing its responsibility for indemnifying a Claim, the Indemnitee of its desire to assume the defense of any may not compromise or settle such Claim within the prescribed period of time, or shall not be entitled to assume the defense of any such Claim (including by failure to diligently pursue defense of such Claim), then the Indemnitee shall control and conduct the defense of any such Claim, at the cost and expense of the Indemnitor, in which event it may do so in such manner as it may deem appropriate acting in a reasonable and good faith manner; provided, however, that it shall not settle any Claim that would give rise to liability on the part of the Indemnitor under this Article VI litigation without the prior written consent of the Indemnitor. , such consent not to be unreasonably withheld or delayed.
(d) The Indemnitee may participate in, but not control, any defense or settlement of any Claim controlled by the Indemnitor pursuant to this Section 8.02 and shall bear its own costs and expenses with respect to such participation; provided, however, that the Indemnitor shall bear such costs and expenses if counsel for the Indemnitor shall have reasonably determined that such counsel may not properly represent both the Indemnitor and the Indemnitee.
(e) A claim for indemnification for any matter not involving a Claim may be permitted asserted by written notice to participate the Indemnitor. Such notice shall include the facts constituting the basis for such claim for indemnification, the Sections of this Agreement upon which such claim for indemnification is then based and an estimate, if possible, of the amount of Damages suffered by the Indemnitee; provided, that the failure to give such notification or any deficiency in such notification will not relieve such Indemnitor from any obligations under this Article VIII, except (i) to the defense extent such failure to give such notification or any deficiency in such notification actually and materially prejudices such Indemnitor or (ii) as provided in Section 8.04. If the Indemnitor does not notify the Indemnitee within twenty (20) Business Days following its receipt of such Claim and notice from the Indemnitee that the Indemnitor objects to employ counsel at the claim received, such indemnity claim specified by the Indemnitee in such notice shall be deemed accepted by the Indemnitor, in which case, the Indemnitee may pursue its own expenseright to indemnification with respect to such indemnity claim under this Article VIII in accordance with the terms hereof.
Appears in 1 contract
Indemnification Procedures for Claims. The following procedures (a) A Person entitled to indemnification pursuant to Section 8.1 will hereinafter be referred to as an “Indemnitee.” A Party obligated to indemnify an Indemnitee hereunder will hereinafter be referred to as an “Indemnitor.” Indemnitee shall be applicable with respect to the indemnification obligations of a party hereunder in respect inform Indemnitor of any claims, demands, actions or causes of action Third Party claim (each a “Claim”) asserted or brought by any third partiesas soon as reasonably practicable after the Claim arises, including any present or former employees of any party:
(a) Promptly after receipt by the party seeking indemnification hereunder (the “Indemnitee”) of written notice of the assertion or the commencement of any Claim, whether by legal process or otherwise, with respect to any matter within the scope of this Article VI, the Indemnitee shall give written notice thereof (a “Notice”) to the party from whom indemnification is to be sought hereunder (the “Indemnitor”) it being understood and shall thereafter keep the Indemnitor reasonably informed with respect thereto; provided, however, agreed that the failure of the Indemnitee to give the Indemnitor prompt such notice as provided herein shall will not relieve the Indemnitor of its indemnification obligations hereunder, unless obligation under this Agreement except and only to the extent that such Indemnitor is actually and materially prejudiced as a result of such failure results in (i) a default judgment, (ii) the expiration of the time to answer a complaint or (iii) material prejudice to the Indemnitor’s defense of such Claim. In case any such Claim is brought against any Indemnitee, the Indemnitor shall be entitled to assume the defense thereof, by giving the Indemnitee written notice of its intention to do so within 30 days after receipt of the Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor’s sole cost and expense; provided, Indemnitor diligently pursues such defense, and; provided, further, that the Indemnitor shall not be entitled to assume the defense if the named parties to any such Claim (including any impleaded parties) include both the Indemnitee and Indemnitor, and the Indemnitee shall have been advised by such counsel that there is one or more legal defenses available to it that are in addition to or in conflict with those available to the Indemnitor. If the Indemnitor shall assume the defense of such Claim, it shall not settle such Claim without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld) unless such settlement includes an unconditional release of the Indemnitee from all liability arising out of such Claim and imposes no obligations on the Indemnitee. Notwithstanding the assumption by the Indemnitor of the defense of any Claim as provided in this Section 6.3, the Indemnitee shall be permitted to participate in the defense of such Claim and to employ counsel at its own expensegive notice.
(b) If the Indemnitor shall fail has acknowledged in writing to notify the Indemnitee of its desire to assume the defense of any Indemnitor’s responsibility for defending such Claim within the prescribed period of time, or shall not be entitled to assume the defense of any and such Claim (including by failure is not a class action or criminal matter, the Indemnitor shall have the right to diligently pursue defense of such Claim), then the Indemnitee shall control and conduct the defense of any such Claimdefend, at the its sole cost and expense (with counsel reasonably selected by the Indemnitor and approved by the Indemnitee, such approval not to be unreasonably withheld or delayed), such Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnitor to a final conclusion or settled at the discretion of the Indemnitor, in which event it may do so in such manner as it may deem appropriate acting in a reasonable and good faith manner; provided, however, that it the Indemnitor may not enter into any compromise or settlement unless (i) such compromise or settlement includes as an unconditional term thereof, the giving by each claimant or plaintiff to the Indemnitee of a release from all liability in respect of such Claim; and (ii) the Indemnitee consents to such compromise or settlement, which consent shall not settle be unreasonably withheld or delayed unless such compromise or settlement involves (A) any admission of legal wrongdoing by the Indemnitee, (B) any payment by the Indemnitee that is not indemnified hereunder or (C) the imposition of any equitable relief against the Indemnitee, in which case ((A) – (C)) the Indemnitee may withhold its consent in its sole discretion. If Indemnitee determines in good faith that the defense is not being or ceases to be conducted diligently and in good faith, the Indemnitee shall have the right, at the expense of the Indemnitor, upon at least ten (10) Business Days’ prior written notice to the Indemnitor of its intent to do so, to undertake the defense of such Claim that would give rise to liability on for the part account of the Indemnitor under this Article VI (with counsel reasonably selected by the Indemnitee and approved by the Indemnitor, such approval not to be unreasonably withheld or delayed). If the Indemnitee is defending such Claim, the Indemnitee shall keep the Indemnitor apprised of all material developments with respect to such Claim and promptly provide the Indemnitor with copies of all correspondence and documents exchanged by the Indemnitee and the opposing party(ies) to such litigation. If the Indemnitor has elected to defend such Claim or if the Indemnitor has otherwise acknowledged in writing its responsibility for indemnifying a Claim, the Indemnitee may not compromise or settle such litigation without the prior written consent of the Indemnitor. , such consent not to be unreasonably withheld or delayed.
(c) The Indemnitee may participate in, but not control, any defense or settlement of any Claim controlled by the Indemnitor pursuant to this Section 8.2 and shall bear its own costs and expenses with respect to such participation; provided, however, that the Indemnitor shall be permitted to participate in bear such costs and expenses if counsel for the defense of Indemnitor shall have reasonably determined that such Claim counsel may not properly represent both the Indemnitor and to employ counsel at its own expensethe Indemnitee.
Appears in 1 contract
Indemnification Procedures for Claims. The following procedures shall be applicable with respect to the indemnification obligations Party claiming indemnity under Section 14.1 or 14.2, either on behalf of a party hereunder in respect of any claims, demands, actions itself or causes of action (each a “Claim”) asserted or brought by any third parties, including any present or former employees of any party:
(a) Promptly after receipt by the party seeking indemnification hereunder (the “Indemnitee”) of written notice of the assertion or the commencement of any Claim, whether by legal process or otherwiseits Indemnified Party, with respect to any matter within the scope of this Article VIa particular Third Party Claim against such Indemnified Party, the Indemnitee shall give written notice thereof (a “Notice”) to the party Party from whom indemnification indemnity hereunder is to be being sought hereunder (the “IndemnitorIndemnifying Party”, as to such Claim) promptly after learning of such Claim, however, that the failure or delay by an Indemnified Party to give such notice of a Claim shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure or delay to give notice. The Indemnified Party shall provide the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with the defense of the Claim for which indemnity is being sought. The Indemnified Party (and shall thereafter keep the Indemnitor reasonably informed including such Party) may participate in and monitor such defense with respect theretocounsel of its own choosing at its own expense; provided, however, that the failure of Indemnifying Party shall have the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of its indemnification obligations hereunder, unless such failure results in (i) a default judgment, (ii) the expiration of the time to answer a complaint or (iii) material prejudice to the Indemnitor’s defense of such Claim. In case any such Claim is brought against any Indemnitee, the Indemnitor shall be entitled right to assume the defense thereof, by giving the Indemnitee written notice of its intention to do so within 30 days after receipt of the Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor’s sole cost and expense; provided, Indemnitor diligently pursues such defense, and; provided, further, that the Indemnitor shall not be entitled to assume the defense if the named parties to any such Claim (including any impleaded parties) include both the Indemnitee and Indemnitor, and the Indemnitee shall have been advised by such counsel that there is one or more legal defenses available to it that are in addition to or in conflict with those available to the Indemnitor. If the Indemnitor shall assume conduct the defense of such Claim, it the Claim with counsel of its choice. The Indemnifying Party shall not settle any such Claim without the prior written consent of the Indemnitee Indemnified Party (which such consent shall not to be unreasonably withheld) , conditioned, or delayed), unless such the settlement includes an unconditional release involves only the payment of the Indemnitee from all liability arising out money, and no admission of such Claim and imposes no obligations on the Indemnitee. Notwithstanding the assumption wrong-doing or fault by the Indemnitor of Indemnified Party. So long as the defense of any Indemnifying Party is actively defending the Claim as provided in this Section 6.3good faith, the Indemnitee shall be permitted to participate in the defense of such Claim and to employ counsel at its own expense.
(b) If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense of any such Claim within the prescribed period of time, or shall not be entitled to assume the defense of any such Claim (including by failure to diligently pursue defense of such Claim), then the Indemnitee shall control and conduct the defense of any such Claim, at the cost and expense of the Indemnitor, in which event it may do so in such manner as it may deem appropriate acting in a reasonable and good faith manner; provided, however, that it Indemnified Party shall not settle any such Claim that would give rise to liability on the part of the Indemnitor under this Article VI without the prior written consent of the IndemnitorIndemnifying Party. The Indemnitor shall be permitted to participate in If the Indemnifying Party does not assume and conduct the defense of such the Claim as provided above, (i) the Indemnified Party may defend against, and consent to employ counsel the entry of any judgment or enter into any settlement with respect to the Claim in any manner the Indemnified Party may deem reasonably appropriate, all at its own expense.Indemnifying Party’s cost and expense (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (ii) the Indemnifying Party will remain responsible to indemnify and hold harmless the Indemnified Party as provided in this Article 14. [***] = CERTAIN CONFIDENTIAL INFORMATION OMITTED
Appears in 1 contract
Indemnification Procedures for Claims. The following procedures shall be applicable with respect to the indemnification obligations of a party hereunder in respect of any claims, demands, actions or causes of action (each a “Claim”) asserted or brought by any third parties, including any present or former employees of any party:
(a) Promptly after receipt All claims for indemnification by the any party seeking indemnification hereunder (the “Indemnitee”"Indemnified Party") of hereunder shall be asserted and resolved as set forth in this Section 9.4. In the event that any written notice of the assertion claim or the commencement of any Claim, whether by legal process or otherwise, with respect to any matter within the scope of this Article VI, the Indemnitee shall give written notice thereof (a “Notice”) to demand for which the party from whom indemnification is sought (an "Indemnifying Party") would be liable to any Indemnified Party hereunder is asserted against or sought to be sought hereunder collected from any Indemnified Party by a third party, such Indemnified Party shall promptly and within a reasonable time of discovery of the breach of nonperformance or of any covenant or representation under this Agreement, notify the Indemnifying Party of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand) (the “Indemnitor”) and shall thereafter keep the Indemnitor reasonably informed with respect thereto"Claim Notice"); provided, however, that the failure of the Indemnitee to give the Indemnitor prompt notice as provided herein such notification shall not relieve affect the Indemnitor of its indemnification obligations hereunder, unless such failure results in (i) a default judgment, (ii) the expiration of the time to answer a complaint or (iii) material prejudice provided hereunder except to the Indemnitor’s defense of such Claim. In case any such Claim is brought against any Indemnitee, extent the Indemnitor shall be entitled to assume the defense thereof, by giving the Indemnitee written notice of its intention to do so within 30 days after receipt of the Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor’s sole cost and expense; provided, Indemnitor diligently pursues such defense, and; provided, further, that the Indemnitor shall not be entitled to assume the defense if the named parties to any such Claim (including any impleaded parties) include both the Indemnitee and Indemnitor, and the Indemnitee Indemnifying Party shall have been advised by such counsel that there is one or more legal defenses available to it that are in addition to or in conflict with those available to the Indemnitor. If the Indemnitor shall assume the defense actually prejudiced as a result of such Claim, it failure. The Indemnifying Party shall not settle such Claim without have 15 days from the prior written consent personal delivery or mailing of the Indemnitee Claim Notice (which consent shall the "Notice Period") to notify the Indemnified Party whether or not be unreasonably withheld) unless it desires to defend the Indemnified Party against such settlement includes an unconditional release of the Indemnitee from all liability arising out of such Claim and imposes no obligations on the Indemnitee. Notwithstanding the assumption by the Indemnitor of the defense of any Claim as provided in this Section 6.3, the Indemnitee shall be permitted to participate in the defense of such Claim and to employ counsel at its own expenseclaim or demand.
(b) All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, and shall be paid by, the Indemnifying Party. Except as hereinafter provided, in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense.
(c) If the Indemnitor shall fail any Indemnified Party desires to notify the Indemnitee of its desire to assume the defense of participate in any such Claim within the prescribed period of time, or shall not be entitled to assume the defense of any such Claim (including by failure to diligently pursue defense of such Claim), then the Indemnitee shall control and conduct the defense of any such Claim, at the cost and expense of the Indemnitor, in which event it may do so in such manner as it may deem appropriate acting in a reasonable at its sole cost and good faith manner; provided, however, that it expense. The Indemnified Party shall not settle any Claim that would give rise a claim or demand for which it seeks or may seek to liability on be indemnified by the part of the Indemnitor under this Article VI Indemnifying Party without the prior written consent of the IndemnitorIndemnifying Party. The Indemnitor If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand (so long as it is a claim or demand in respect of which indemnification is available hereunder) or, if the same be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be permitted to the liability of the Indemnifying Party hereunder. To the extent the Indemnifying Party shall direct, control or participate in the defense or settlement of any third-party claim or demand or participate in the defense or settlement of any third-party claim or demand, the Indemnified Party will give the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party. The Indemnified Party shall use its reasonable efforts in the defense of all such Claim and to employ counsel at its own expenseclaims.
Appears in 1 contract
Samples: Securities Purchase Agreement (Crown Media Holdings Inc)
