Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law. 8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified. 8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3. (a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement. (b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation. (c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation. (d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 6 contracts
Samples: Employment Agreement (Lufkin Industries Inc), Employment Agreement (Lufkin Industries Inc), Employment Agreement (Lufkin Industries Inc)
Indemnification. 8.1 If at In the event that GS, the Manager, the Fund, or any time of their respective partners, officers, directors, managers, shareholders, agents, representatives, and affiliates, or any heirs, legal representatives, successors, and assigns of the Executive is a party foregoing (each an “Indemnified Party” and collectively the “Indemnified Parties”) become involved in any capacity in any action, proceeding or is threatened investigation (including relating to be taxes) brought by or against any person (including you) arising out of or based upon any alleged false representation, breach of warranty, or breach or failure by you to comply with any covenant or agreement made a party by you herein (including, without limitation, your irrevocable agreement to fund your subscription amount in full by the settlement due date) or in any other document furnished by you to any threatenedIndemnified Party in connection with this transaction, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason you will reimburse on demand the Indemnified Parties for their legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith regardless of the fact that he outcome. You will also indemnify the Indemnified Parties against any losses, claims, damages or liabilities to which any of them may become subject in connection with any such matter or in connection with your failure to provide true and correct information or to otherwise comply with the provisions of paragraph 6 above. If for any reason the foregoing indemnification is or was a director, officer, employee or agent of the Companyunavailable to any Indemnified Party, or is insufficient to hold it harmless, then you will contribute to the amount paid or was serving at the request of the Company payable by such Indemnified Party as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition result of such actionloss, suit claim, damage or proceeding upon receipt of an undertaking by the Executive to repay liability in such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved proportion as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify appropriate to reflect not only the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to relative benefits received by you on the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), one hand and the basis Indemnified Party on the other but also the relative fault of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 you and the Company shall bear his costs and expenses with respect to such participation.
(c) If Indemnified Party upon the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order finding of a court of competent jurisdiction. Your reimbursement, indemnity and contribution obligations under this paragraph 11 and paragraph 12 will be in addition to any liability that you may otherwise have, will extend upon the Company shall not be required same terms and conditions to bear the costs partners, employees, officers and expenses controlling persons of the Executive’s defense pursuant Indemnified Parties, will be binding upon and inure to this Section 8 or the benefit of any successors, assigns, heirs and personal representatives of the Company’s participation therein at the Executive’s requestIndemnified Parties and any such persons, and will survive any transfer, redemption or withdrawal of your Interests and any dissolution or termination of the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationFund.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 6 contracts
Samples: Subscription Agreement (Goldman Sachs Private Markets Fund 2018 (A) LLC), Subscription Agreement (Goldman Sachs Private Markets Fund 2018 (B) LLC), Subscription Agreement (Goldman Sachs Private Markets Fund 2018 LLC)
Indemnification. 8.1 If at Borrower shall indemnify, protect, defend and save harmless Lender, as well as Lender's directors, officers, trustees, employees, agents, attorneys, members and shareholders (hereinafter referred to collectively as the "Indemnified Parties" and individually as an "Indemnified Party") from and against any time the Executive is a party and all losses, damages, expenses or is threatened to be made a party to liabilities of any threatenedkind or nature (collectively, pending “Damages”) and from any suits, claims or completed action, suit or proceeding, whether civil, criminal, administrative or investigativedemands, by reason third parties, including reasonable counsel fees incurred in investigating or defending such claim, suffered by any of them and caused by, relating to, arising out of, resulting from, or in any way connected with the Loans and the transactions contemplated herein, provided, however, the Borrower shall not be liable to the Lender to the extent that any such Damages arise out of or are based on the gross negligence of the fact that he is or was a director, officer, employee or agent Lender.. In case any action shall be brought against an Indemnified Party based upon any of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseabove and in respect to which indemnity may be sought against Borrower, the Company shall indemnify the Executive and hold him harmless Indemnified Party against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with whom such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) action was brought shall promptly notify Borrower in writing, and Borrower shall assume the Company defense thereof, including the employment of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement counsel selected by Borrower and (ii) shall transmit reasonably satisfactory to the Company a written notice (“Claim Notice”) describing in reasonable detail Indemnified Party, the nature of the Third Party Claim, a copy payment of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect and the right to such participation.
(c) If negotiate and consent to settlement. Upon reasonable determination made by the Company fails to notify Indemnified Party, the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Indemnified Party Claim, then the Executive shall have the right to defend, at employ separate counsel in any such action and to participate in the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsthereof; provided, however, however that the Executive may not enter into, without the Company’s consent, which Indemnified Party shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear pay the costs and expenses incurred in connection with the employment of separate counsel. Borrower shall not be liable for any settlement of any such action effected without its consent, but if settled with Borrower's consent, or if there be a final judgment for the claimant in any such action, Borrower agrees to indemnify and save harmless said Indemnified Party against whom such action was brought from and against any loss or liability by reason of such settlement or judgment, except as otherwise provided above. The provisions of this Section shall survive the termination of this Agreement and the final repayment of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationObligations.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 6 contracts
Samples: Loan and Security Agreement (Emagin Corp), Loan and Security Agreement (Emagin Corp), Loan and Security Agreement (Emagin Corp)
Indemnification. 8.1 If at The Company shall indemnify and hold harmless each Purchaser, the officers, directors, agents and employees of each of them, each Person who controls any time such Purchaser (within the Executive is a party meaning of Section 15 of the Securities Act or is threatened Section 20 of the Exchange Act) and the officers, directors, agents and employees of each such controlling Person, to be the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys' fees) and expenses (including the cost (including without limitation, reasonable attorneys’ fees) and expenses relating to an Indemnified Party’s (as defined below) actions to enforce the provisions of this Section 6.5) (collectively, “Losses”), as incurred, to the extent arising out of or relating to (i) any material misrepresentation or breach of any representation or warranty made a party to by the Company in the Transaction Documents, or (ii) any threatenedmaterial breach of any covenant, pending agreement or completed obligation of the Company contained in the Transaction Documents, or (iii) any cause of action, suit or proceedingclaim brought or made against such Indemnified Party and arising out of or resulting from the execution, whether civildelivery, criminal, administrative performance or investigative, by reason enforcement of the fact that he is or was a director, officer, employee or agent Transaction Documents executed pursuant hereto by any of the CompanyIndemnified Parties. If the indemnification provided for in this Section 6.5 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any Losses, then the Indemnifying Party (as defined below), in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of Losses in such proportion as is or was serving at appropriate to reflect the request relative fault of the Company as a director, officer, employee or agent Indemnifying Party on the one hand and of another corporation, partnership, joint venture, trust, employee benefit plan or the Indemnified Party on the other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with the actions or omissions that resulted in such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending Losses as well as any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) other relevant equitable considerations. The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether Purchaser promptly of the institution, threat or assertion of any proceeding of which the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company is aware in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate connection with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided transactions contemplated by this Section 8 shall apply whether or not the negligence of a party is alleged or provedAgreement.
Appears in 6 contracts
Samples: Securities Purchase Agreement (Xa, Inc.), Securities Purchase Agreement (Xa, Inc.), Securities Purchase Agreement (Xa, Inc.)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive Company agrees to indemnify and hold harmless Purchaser, its Affiliates, and each Person, if any, who controls Purchaser, or any of its Affiliates, within the meaning of the Securities Act or the Exchange Act (ieach, a "Controlling Person"), and the respective partners, agents, employees, officers and Directors of Purchaser, their Affiliates and any such Controlling Person (each an "Indemnified Party") and collectively, the "Indemnified Parties"), from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation and as incurred, reasonable costs of investigating, preparing or defending any such claim or action, whether or not such Indemnified Party is a party thereto, provided that the Company shall not be obligated to advance such costs to any Indemnified Party other than Purchaser unless it has received from such Indemnified Party an undertaking to repay to the Company the costs so advanced if it should be determined by final judgment of a court of competent jurisdiction that such Indemnified Party was not entitled to indemnification hereunder with respect to such costs) which may be incurred by such Indemnified Party in connection with any investigative, administrative or judicial proceeding brought or threatened that relates to or arises out of, or is in connection with any activities contemplated by any Transaction Agreement or any other services rendered in connection herewith; provided that the Company will not be responsible for any claims, liabilities, losses, damages or expenses that are determined by final judgment of a court of competent jurisdiction to result from such Indemnified Party's gross negligence, willful misconduct or bad faith.
(b) If any action shall be brought against an Indemnified Party with respect to which indemnity may be sought against the Company under this Agreement, such Indemnified Party shall promptly notify the Company in writing and the Company, at its option, may, assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Party and payment of all reasonable fees and expenses. The failure to so notify the Company shall not affect any third-party claim or claims asserted against him (“Third obligations the Company may have to such Indemnified Party Claim”) that could give rise to a right of indemnification under this Agreement or otherwise unless the Company is materially adversely affected by such failure. Such Indemnified Party shall have the right to employ separate counsel in such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the Company has failed to assume the defense and employ counsel or (ii) the named parties to any such action (including any impleaded parties) include such Indemnified Party and the Company, and such Indemnified Party shall transmit have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company, in which case, if such Indemnified Party notifies the Company a written notice (“Claim Notice”) describing in reasonable detail writing that it elects to employ separate counsel at the nature expense of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”)Company, the Company shall notify not have the Executive (i) whether right to assume the defense of such action or proceeding on behalf of such Indemnified Party, provided, however, that the Company disputes its potential liability shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be responsible hereunder for the reasonable fees and expenses of more than one such firm of separate counsel, in addition to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedingslocal counsel, which proceedings counsel shall be prosecuted diligently designated by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b)Purchaser. The Company shall have full control not be liable for any settlement of any such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at action effected without the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those written consent of the Company (which shall not be unreasonably withheld) and not prejudicial the Company agrees to indemnify and hold harmless each Indemnified Party from and against any loss or liability by reason of settlement of any action effected with the consent of the Company. If requested by the CompanyIn addition, the Executive agreesCompany will not, at without the Company’s sole cost and expenseprior written consent of Purchaser, settle or compromise or consent to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making entry of any related counterclaim against the person asserting the Third judgment in or otherwise seek to terminate any pending or threatened action, claim, suit or proceeding in respect to which indemnification or contribution may be sought hereunder (whether or not any Indemnified Party Claim is a party thereto) unless such settlement, compromise, consent or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement termination includes an express unconditional release of any Third Party Claim controlled by the Company pursuant to this Section 8.3 Purchaser and the Company shall bear his costs other Indemnified Parties, satisfactory in form and expenses with respect substance to Purchaser, from all liability arising out of such participationaction, claim, suit or proceeding.
(c) If for any reason the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive foregoing indemnity is unavailable (otherwise than pursuant to Subsection 8.3(b), the express terms of such indemnity) to an Indemnified Party or if the Company elects insufficient to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third hold an Indemnified Party Claimharmless, then the Executive shall have the right to defend, at the sole cost and expense in lieu of the Company, the Third Party Claim. The Executive shall have full control of indemnifying such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdictionIndemnified Party, the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such claims, liabilities, losses, damages, or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by Purchaser on the other from the transactions contemplated by this Agreement or (ii) if the allocation provided by clause (i) is not be required permitted under applicable law, in such proportion as is appropriate to bear reflect not only the costs relative benefits received by the Company on the one hand and expenses Purchaser on the other, but also the relative fault of the Executive’s defense Company and Purchaser as well as any other relevant equitable considerations. Notwithstanding the provisions of this Section 13.3, the aggregate contribution of all Indemnified Parties shall not exceed the amount of interest and fees actually received by Purchaser pursuant to this Section 8 or of Agreement. It is hereby further agreed that the Company’s participation therein at the Executive’s request, and the Executive shall reimburse relative benefits to the Company promptly in full for all costs on the one hand and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by Purchaser on the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses other with respect to the transactions contemplated hereby shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of material fact or the omission or alleged omission to state a material fact related to information supplied by the Company or by Purchaser and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such participationstatement or omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(d) The indemnification provided by indemnification, contribution and expense reimbursement obligations set forth in this Section 8 13.3 (i) shall apply whether be in addition to any liability the Company may have to any Indemnified Party at common law or not otherwise; (ii) shall survive the negligence termination of a party is alleged this Agreement and the other Transaction Agreements and the payment in full of the Convertible Debentures and (iii) shall remain operative and in full force and effect regardless of any investigation made by or provedon behalf of Purchaser or any other Indemnified Party.
Appears in 6 contracts
Samples: Securities Purchase Agreement (Dial Thru International Corp), Securities Purchase Agreement (Directplacement Inc), Securities Purchase Agreement (Directplacement Inc)
Indemnification. 8.1 If at The Company agrees to indemnify and hold harmless the Indemnified Parties from and against any time and all claims, damages, losses, liabilities and expenses (including, without limitation, fees and disbursements of counsel), that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of this Agreement (including as a result of any breach or inaccuracy of any representation, warranty or covenant herein), the Executive other Offering Documents, or the transactions contemplated hereby or thereby, solely to the extent such Offering Documents or transactions contemplated thereby relate to this Agreement and the Series C Preferred Equity Offering, any use made or proposed to be made with the proceeds of the Series C Preferred Equity Offering, or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any Indemnified Party is a party or is threatened to be made a party to any threatenedthereto, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs reimburse each Indemnified Party upon demand for reasonable and documented fees and expenses of counsel (which, so long as there are no conflicts among such Indemnified Parties, shall be limited to one law firm serving as counsel for the Indemnified Parties) and other expenses incurred by it in connection with investigating, preparing to defend or defending, or providing evidence in or preparing to serve or serving as a witness with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheldto, any compromise lawsuit, investigation, claim or settlement other proceeding relating to any of such Third Party Claim. Notwithstanding the foregoing, if irrespective of whether the transactions contemplated hereby are consummated, except to the extent such claim, damage, loss, liability, or expense is found in a Final Order to have resulted from such Indemnified Party’s bad faith, actual fraud, gross negligence, or willful misconduct. No Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company has delivered a written notice for or in connection with the transactions contemplated hereby, except to the Executive to the effect that the Company disputes its potential extent such liability to the Executive under this Section 8, and if such dispute is resolved found in favor of the Company by a final, nonappealable non-appealable order of a court of competent jurisdictionjurisdiction to have resulted from such Indemnified Party’s bad faith, actual fraud, gross negligence or willful misconduct. In no event, however, shall the Company or any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages. Without the prior written consent of the Indemnified Parties, the Company agrees that it will not enter into any settlement of any lawsuit, claim or other proceeding arising out of this Agreement, the other Offering Documents, or the transactions contemplated hereby or thereby, solely to the extent such Offering Documents or transactions contemplated thereby relate to this Agreement and the Series C Preferred Equity Offering, unless such settlement (i) includes an explicit and unconditional release from the party bringing such lawsuit, claim or other proceeding of all Indemnified Parties and (ii) does not include a statement as to or an admission of fault, culpability, or a failure to act by or on behalf of any Indemnified Party. No Indemnified Party shall not be required liable for any damages arising from the use by unauthorized persons of any information made available to bear the costs and expenses Indemnified Parties by the Company or any of its representatives through electronic, telecommunications or other information transmission systems that is intercepted by such persons. No Indemnified Party shall settle any lawsuit, claim, or other proceeding arising out of this Agreement, the other Offering Documents, or the transactions contemplated hereby or thereby without the prior written consent of the Executive’s defense pursuant Company (such consent not to this Section 8 be unreasonably withheld or of delayed). Notwithstanding the Company’s participation therein at the Executive’s requestforegoing, and the Executive an Indemnified Party shall reimburse be entitled to no indemnification by the Company promptly in full for all costs and expenses any claim, damage, loss, liability, or expense incurred by or asserted or awarded against such Indemnified Party for any violation of Law by such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationIndemnified Party.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 5 contracts
Samples: Series C Convertible Preferred Stock Purchase Agreement (NextDecade Corp.), Series C Convertible Preferred Stock Purchase Agreement (NextDecade Corp.), Series C Convertible Preferred Stock Purchase Agreement (York Capital Management Global Advisors, LLC)
Indemnification. 8.1 If at any time Subject to the Executive is a party or is threatened provisions of this Section 4.8, and to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, the extent permitted by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriselaw, the Company shall will indemnify the Executive and hold him each Purchaser and its directors, officers, shareholders, members, partners, employees, agents and controlling persons (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) (each, a “Purchaser Party”) harmless against reasonable expenses (from any and all losses, liabilities, damages, costs and expenses, including attorneys’ fees), all judgments, fines, penalties, amounts paid in settlement settlements, court costs and other liabilities actually reasonable attorneys’ fees and reasonably incurred costs of investigation that any such Purchaser Party may suffer or incur due to a claim by him in connection a third party as a result of or relating to any action instituted against a Purchaser Party by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents, except to the extent that that a loss, liability, damage, cost or expense is attributable to a breach of such Purchaser’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with such actionstockholder or any violations by such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, suit gross negligence, willful misconduct or malfeasance. If any claim, action or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals brought against any Purchaser Party in advance respect of the final disposition of which indemnity may be sought pursuant to this Agreement, such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) Purchaser Party shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingswriting; provided, however, that the Executive may not enter intofailure timely to give such notice shall affect the rights of such Purchaser Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Company with respect to such claim, without action or proceeding. At the election of the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required have the right to bear assume the costs defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such claim, action or proceeding and expenses of participate in the Executive’s defense pursuant to this Section 8 or of thereof, but the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs fees and expenses of such litigationcounsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such claim, action or proceeding there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company may participate inwill have the exclusive right to settle any claim, but not controlaction or proceeding; provided, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c)however, and that the Company will not settle any such claim, action or proceeding without the prior written consent of the Purchaser Party, which will not be unreasonably withheld or delayed; provided, however, that such consent shall bear its own costs not be required if the settlement includes a full and expenses with respect unconditional release from all liability arising or that may arise out of such claim or proceeding and does not include a statement as to such participationor an admission of fault, culpability or a failure to act by or on behalf of any Purchaser Party.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 5 contracts
Samples: Securities Purchase Agreement (Catasys, Inc.), Securities Purchase Agreement (Hythiam Inc), Securities Purchase Agreement (Hythiam Inc)
Indemnification. 8.1 If at any time 7.1 To the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full fullest extent permitted by law.
8.2 Expenses , and subject to the limitations set forth in Section 6 of this Agreement, each Party (the “Indemnifying Party”) shall indemnify and hold harmless the other Party, and its current and future direct and indirect parent companies, affiliates and their shareholders, officers, directors, employees, agents, servants and assigns (collectively, the “Indemnified Party”) and at the Indemnified Party's option, the Indemnifying Party shall defend the Indemnified Party from and against any and all claims and/or liabilities for losses, expenses, damage to property, injury to or death of any person, including, but not limited to, the Indemnified Party’s employees and its affiliates’ employees, subcontractors and subcontractors’ employees, or any other liability incurred by the Indemnified Party, including reasonable expenses, legal and otherwise, which shall include reasonable attorneys’ fees) incurred , caused wholly or in part by any negligent, grossly negligent or willful act or omission by the Executive Indemnifying Party, its officers, directors, employees, agents or assigns arising out of this Agreement, except to the extent caused wholly or in appearing atpart by any negligent, participating grossly negligent or willful act or omission of the Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by and unless in the Company at reasonable intervals in advance opinion of counsel for the final disposition Indemnified Party a conflict of such action, suit or proceeding upon receipt of an undertaking by interest between the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served Parties may exist with respect to such claim (claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnified Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if any)a conflict precludes the Indemnifying Party from assuming the defense, and then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s defense through separate counsel of his request for indemnification under this Agreement.
(b) Within 30 days after receipt the Indemnified Party's choice. Even if the Indemnifying Party assumes the defense of any Claim Notice (“Election Period”)the Indemnified Party with acceptable counsel, the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desiresIndemnified Party, at its sole cost and option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder. In no event shall either Party be liable to defend the Executive against such Third other Party Claim for any indirect, special, consequential, or punitive damages of any kind whatsoever, whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this Section 7 shall survive termination of this Agreement, and shall not be limited in any way by any appropriate proceedingslimitation on the amount or type of damages, which proceedings shall be prosecuted diligently compensation or benefits payable by or for the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedingsIndemnifying Party under any statutory scheme, including any compromise or settlement thereof. The Executive is hereby authorizedincluding, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of under any related counterclaim against the person asserting the Third Party Claim Worker’s Compensation Acts, Disability Benefit Acts or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationother Employee Benefit Acts.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 5 contracts
Samples: Energy Service Provider Service Agreement, Electric Service Provider Agreement, Electric Service Provider (Esp) Service Agreement
Indemnification. 8.1 If at 7.1 To the fullest extent permitted by law, the Company agrees to indemnify and hold harmless on an after tax basis the Dealer, its Affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an "Indemnified Party") from and against, and hereby agrees that an Indemnified Party shall have no liability to the Company or its owners, associated companies, security holders or creditors for, any time and all losses, claims, damages, charges, tax or liabilities (or actions in respect thereof), whether joint or several, to which such Indemnified Party may become subject, relating to or arising out of or in connection with this Agreement, including without limitation, under chapter 4 of part 18 of the Executive Act, or any claim, litigation, investigation or proceeding relating thereto ("Losses"), regardless of whether any of such Indemnified Party is a party thereto, except to the extent that any such Losses have been finally judicially determined by a Court of competent jurisdiction to have resulted from fraud, gross negligence or willful default on the part of such Indemnified Party, and to reimburse, within 30 days of a written request, each such Indemnified Party for any reasonable legal or other expenses incurred in connection with investigating, preparation for, providing evidence for or defending any claim, action, proceeding, investigation or judgement to which this indemnity relates. If for any reason the foregoing indemnification is threatened to be made a party unavailable to any threatenedIndemnified Party or insufficient to hold harmless any Indemnified Party, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of then the Company shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a directorresult of such loss, officerclaim, employee damage or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseliability.
7.2 To the fullest extent permitted by law, the Company shall indemnify the Executive and hold him harmless against will reimburse any Indemnified Party for all reasonable out-of-pocket expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement reasonable counsel fees and other liabilities actually and reasonably expenses) as they are incurred by him (after notice to the Company) in connection with such the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceedingarising therefrom, whether civilor not such Indemnified Party is a party thereto and whether or not such claim, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon is initiated or brought by or on behalf of the Company, as applicable.
7.3 If the performance by the Dealer of any of its obligations under this Agreement represents for VAT purposes the making by the Dealer of any supply of goods or services to the Company that is taxable at a positive rate (other than where the reverse charge applies), the Company will pay to the Dealer, in addition to the amounts otherwise payable by the Company to the Dealer pursuant to this Agreement, an amount equal to the VAT chargeable on the supply on receipt of an undertaking a valid VAT invoice.
7.4 Where a sum is payable (or reimbursed) to the Dealer in respect of any fees, costs or expenses paid or incurred by the Executive Dealer and those fees, costs or expenses include an amount of VAT incurred by the Dealer, the Company shall pay to repay such amounts if it shall ultimately be determined that he the Dealer the amount of VAT in addition to any net fee, cost or expense, provided the Dealer is not entitled to be indemnifiedcredit the VAT incurred as input tax.
8.3 All claims for indemnification 7.5 If in respect of a payment under this Agreement the Company is obliged to make any deduction or withholding on account of any tax of any nature, the amount payable shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit grossed up to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claimextent necessary to ensure that, a copy of all papers served with respect to after such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”)deduction or withholding, the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationamount received remains unchanged.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 5 contracts
Samples: Share Repurchase Contract, Share Repurchase Contract, Share Repurchase Contract
Indemnification. 8.1 If at The Company will indemnify and hold harmless Carlyle and its officers, employees, agents, representatives, members and affiliates (each being an “Indemnified Party”) from and against any time and all losses, costs, expenses, claims, damages and liabilities (the Executive “Liabilities”) to which such Indemnified Party may become subject under any applicable law, or any claim made by any third party, or otherwise, to the extent they relate to or arise out of the performance of the Services contemplated by this Agreement or the engagement of Carlyle pursuant to, and the performance by Carlyle of the Services contemplated by, this Agreement. The Company will reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party hereto, provided that, subject to the following sentence, the Company shall be entitled to assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment. Any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense, and in any action, claim or proceeding in which the Company, on the one hand, and an Indemnified Party, on the other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall have the right to employ separate counsel at the Company’s expense and to control its own defense of such action, claim or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a conflict or potential conflict exists between the Company, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable. The Company agrees that it will not, without the prior written consent of the applicable Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been actually threatened to be made a party to any threatenedthereto) unless such settlement, pending compromise or completed actionconsent includes an unconditional release of the applicable Indemnified Party and each other Indemnified Party from all liability arising or that may arise out of such claim, suit action or proceeding. Provided that the Company is not in breach of its indemnification obligations hereunder, whether civil, criminal, administrative no Indemnified Party shall settle or investigative, by reason of compromise any claim subject to indemnification hereunder without the fact that he is or was a director, officer, employee or agent consent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at will not be liable under the Company’s sole cost and expense (but only if he is actually entitled to foregoing indemnification hereunder or if the Company assumes the defense with respect provision to the Third Party Claim)extent that any loss, claim, damage, liability, cost or expense is determined by a court, in a final judgment from which no further appeal may be taken, to filehave resulted solely from the gross negligence or willful misconduct of Carlyle. If an Indemnified Party is reimbursed hereunder for any expenses, during the Election Period, any motion, answer or other pleadings which he such reimbursement of expenses shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial be refunded to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim extent it is finally judicially determined that the Company elects to contest, including without limitation, through Liabilities in question resulted solely from the making gross negligence or willful misconduct of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationCarlyle.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 5 contracts
Samples: Management Agreement (Booz Allen Hamilton Holding Corp), Management Agreement (Chefford Master Manufacturing Co Inc), Management Consulting Agreement (Hawaiian Telcom Communications, Inc.)
Indemnification. 8.1 If at (a) Each Lender Party severally agrees to indemnify each Lead Arranger and each Agent (to the extent not promptly reimbursed by the Borrower) from and against such Lender Party’s ratable share (determined as provided below) of any time the Executive is a party or is threatened to be made a party to any threatenedand all liabilities, pending or completed actionobligations, suit or proceedinglosses, whether civildamages, criminalpenalties, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees)actions, judgments, finessuits, penaltiescosts, amounts paid in settlement and other liabilities actually and reasonably expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating inby, or defending asserted against such Agent in any threatened, pending way relating to or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance arising out of the final disposition of Loan Documents or any action taken or omitted by such actionAgent under the Loan Documents (collectively, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election PeriodIndemnified Costs”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which no Lender Party shall not be unreasonably withheld, liable for any compromise or settlement portion of such Third Party Claimliabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s or such Lead Arranger’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction with respect to such Agent or the Joint Lead Arrangers, as the case may be. Notwithstanding Without limitation of the foregoing, if each Lender Party agrees to reimburse the Company has delivered a written notice Joint Lead Arrangers and each Agent promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 8.04, to the Executive extent that such Lead Arranger or such Agent is not promptly reimbursed for such costs and expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or proceeding is brought by any Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify each Issuing Bank (to the effect extent not promptly reimbursed by the Borrower) from and against such Lender Party’s ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that the Company disputes its potential liability may be imposed on, incurred by, or asserted against such Issuing Bank in any way relating to the Executive under this Section 8, and if such dispute is resolved in favor or arising out of the Company Loan Documents or any action taken or omitted by such Issuing Bank under the Loan Documents; provided, however, that no Lender Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Issuing Bank’s gross negligence or willful misconduct as found in a final, nonappealable order of non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, the Company shall not be required each Lender Party agrees to bear the reimburse such Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Executive’s defense pursuant Borrower under Section 8.04, to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company extent that such Issuing Bank is not promptly in full reimbursed for all such costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationBorrower.
(dc) The indemnification provided by For purposes of this Section 8 7.05, the Lender Parties’ respective ratable shares of any amount shall apply whether be determined, at any time, according to the sum of (i) the aggregate principal amount of the Advances outstanding at such time and owing to the respective Lender Parties, (ii) their respective Pro Rata Shares of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) their respective Unused Revolving Credit Commitments at such time; provided that the aggregate principal amount of Swing Line Advances owing to the Swing Line Bank and of Letter of Credit Advances owing to such Issuing Bank shall be considered to be owed to the Revolving Credit Lenders ratably in accordance with their respective Revolving Credit Commitments. The failure of any Lender Party to reimburse any Agent or any Issuing Bank, as the case may be, promptly upon demand for its ratable share of any amount required to be paid by the Lender Parties to such Agent or such Issuing Bank, as the case may be, as provided herein shall not relieve any other Lender Party of its obligation hereunder to reimburse such Agent or such Issuing Bank, as the negligence case may be, for its ratable share of a party is alleged such amount, but no Lender Party shall be responsible for the failure of any other Lender Party to reimburse such Agent or provedsuch Issuing Bank, as the case may be, for such other Lender Party’s ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender Party hereunder, the agreement and obligations of each Lender Party contained in this Section 7.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the other Loan Documents.
Appears in 5 contracts
Samples: Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc), Credit Agreement (Steel Dynamics Inc)
Indemnification. 8.1 If at either party to this Agreement brings an action based on this Agreement, the prevailing party shall be entitled to recover reasonable expenses therefor, including, but not limited to, attorneys' fees, expenses and court costs. In addition, MYM agrees to indemnify and hold harmless the Advisor and his affiliates, counsel and other professional advisors, the respective directors, officers, agents and employees of each of the foregoing or any time of their affiliates within the Executive is a party meaning of either Section 15 of the Securities Act of 1933, as amended, or is threatened Section 20 of the Securities and Exchange Act of 1934, as amended, (individually, an "Indemnified Party" and collectively, the "Indemnified Parties"), from and against all losses, claims, damages, expenses or liabilities resulting from, relating to, or arising out of action taken or omitted to be made a party taken (i) by the Company or (ii) by an Indemnified Party in good faith pursuant to the terms of, or in connection with, services rendered pursuant to this Agreement or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprisetransactions covered thereby. In addition, the Company shall indemnify the Executive agrees to reimburse each Indemnified Party for all reasonable out-of-pocket and hold him harmless against reasonable direct expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement reasonable fees and other liabilities actually and reasonably expenses of counsel) as they are incurred by him such Indemnified Party in connection with such actioninvestigating, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, preparing or defending any threatened, pending such action or completed action, suit or proceedingclaim, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals not in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he connection with litigation in which any Indemnified Party is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claimnamed party. Notwithstanding the foregoing, if the Company has delivered a written notice MYM shall not be liable to an Indemnified Party in respect to any loss, claim, damage, liability or expense to the Executive to extent the effect that the Company disputes its potential liability to the Executive under this Section 8same is determined, and if such dispute is resolved in favor of the Company a final judgment by final, nonappealable order of a court of competent jurisdiction, to have resulted primarily and directly from the Company shall not be required to bear gross negligence or willful misconduct of that Indemnified Party. In the costs and expenses event of the Executive’s defense pursuant assertion against any Indemnified Party of any claim or the commencement of any action or proceeding, MYM shall be entitled to this Section 8 participate in such action or proceeding, and in the investigation of such claim, and after written notice from the Company’s participation therein at , to assume the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses investigation or defense of such litigationclaim, action or proceeding with counsel of its choice at its expense; provided however, that such counsel shall be reasonably satisfactory to that Indemnified Party. The Company may participate inNotwithstanding MYM's election to assume the defense or investigation of such claim, but not controlaction or proceeding, any Indemnified Party shall have the right to employ separate counsel (and local counsel, if necessary) and to participate in the defense or settlement controlled by the Executive pursuant to this Section 8.3(c)investigation of such claim, action or proceeding, and the Company shall advance and bear its own costs the expense (including reasonable fees and disbursements) of such separate counsel. In the event that MYM shall have assumed the defense or investigation of any claim, action or proceeding, the Company may not settle any such claim, action or proceeding without the written consent of any Indemnified Party named as defendant therein. If for any reason the foregoing indemnification is unavailable to an Indemnified Party or is insufficient to hold it harmless as contemplated herein then the indemnifying party shall contribute to the amount paid or payable by the Indemnified Party as result of such loss, claim, liability or expense in such proportion as it appropriate to reflect not only the relative benefits received by the Company and their affiliates, on the one hand, and the Advisor, or the other applicable Indemnified Party, as the case may be, on the other hand, but also the relative fault of the Company and their affiliates and any Indemnified Party, as the case may be, as well as any other relevant equitable considerations, subject to the limitation that in any event the aggregate contribution of all Indemnified Parties to all losses, claims, liabilities, damages and expenses shall not exceed the amount of fees actually received by the Advisor pursuant to this Agreement. It is hereby further agreed that the relative benefits to MYM on the one hand and the Advisor on the other hand with respect to any transaction or proposed transaction contemplated by this Agreement shall be deemed to be in the same proportion as (i) the total value of the transaction to (ii) the fee paid to the Advisor with respect to such participation.
transaction. No Indemnified party shall have any liability to MYM or any other person in connection with the services rendered pursuant to this Agreement, except for the liability for losses, claims, damages or liabilities finally judicially determined to have resulted from such Indemnified Party's gross negligence or willful misconduct. The indemnity, contribution and expense reimbursement obligations set forth herein shall be in addition to any liability the Company may have to an Indemnified Party at common law or otherwise, and shall survive the expiration of the term of this Agreement. If any personnel of an Indemnified Party appears as a witness, are deposed or are otherwise involved in the defense of any action against any Indemnified Party, MYM or any officer or director of the Company, MYM will reimburse such Indemnified Party for all reasonable out-of-pocket and direct expenses (dincluding the reasonable fees and expenses of counsel for such Indemnified Party) The indemnification provided incurred by this Section 8 it by reason of any of its personnel being involved in any such action and will compensate the Advisor for time spent, by his employees preparing for and testifying as witnesses in any deposition or proceeding at the Advisor's customary daily rates. Governing Law This Agreement shall apply whether or be governed by and construed in accordance with the internal substantive laws, and not the negligence choice of a party is alleged law rules, of the State of New York. Any suits, claims, causes of action, or proveddisputes arising under this Agreement shall be brought in the courts of the State of New York or in the United States District Court of the Southern District of New York.
Appears in 5 contracts
Samples: Financial Advisory Agreement (Make Your Move Inc), Financial Advisory Agreement (Make Your Move Inc), Financial Advisory Agreement (Make Your Move Inc)
Indemnification. 8.1 If at Each Loan Party agrees to indemnify, defend and hold Lender and its directors, officers, employees, agents, attorneys, or any time other Person affiliated with or representing Lender (each, an “Indemnified Person”) harmless against: (a) all obligations, demands, claims, and liabilities (including such claims, costs, expenses, damages and liabilities based on liability in tort, including strict liability in tort) (collectively, “Claims”) claimed or asserted by any other party in connection with, relating to, following from or arising from, out of or under the Executive is a party transactions contemplated by the Loan Documents; and (b) all losses, liabilities, costs or is threatened expenses (including Lender Expenses) in any way suffered, incurred, or paid by such Indemnified Person in connection with, relating to, following from, or arising from, out of or under the transactions among or between Lender and Loan Parties, or any of them (including reasonable attorneys’ fees and expenses), except for Claims and/or losses to be made a party to the extent directly caused by such Indemnified Person’s gross negligence or willful misconduct. Each Loan Party hereby further indemnifies, defends and holds each Indemnified Person harmless from and against any threatenedand all liabilities, pending obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or completed actionnature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnified Person) in connection with any investigative, suit response, remedial, administrative or judicial matter or proceeding, whether civilor not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of any Loan Party, criminaland the reasonable expenses of investigation by engineers, administrative environmental consultants and similar technical personnel and any commission, fee or investigativecompensation claimed by any broker (other than any broker retained by Lender) asserting any right to payment for the transactions contemplated hereby which may be imposed on, incurred by reason or asserted against such Indemnified Person as a result of or in connection with the transactions contemplated hereby and the use or intended use of the fact that he is or was a director, officer, employee or agent proceeds of the Companyloan proceeds except for liabilities, or is or was serving at the request of the Company as a directorobligations, officerlosses, employee or agent of another corporationdamages, partnershippenalties, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees)actions, judgments, finessuits, penaltiesclaims, amounts paid in settlement costs, expenses and other liabilities actually and reasonably incurred disbursements directly caused by him in connection with such action, suit Indemnified Person’s gross negligence or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, willful misconduct. This Section 13.3 shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served apply with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of Taxes other than any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party taxes that represent Claims arising from any non-Tax Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion survive until all statutes of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense limitation with respect to the Third Party Claim)Claims, to filelosses, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive for which indemnity is given shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationrun.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Loan and Security Agreement (Pulmonx Corp), Loan and Security Agreement (Pulmonx Corp), Loan and Security Agreement (Pulmonx Corp)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desiresCustomer, at its sole cost expense, will defend, indemnify and hold Arcserve and its directors, officers, employees, contractors, agents, distributors, resellers, successors and assigns (“Arcserve Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) resulting from any third party claim, suit, action, or proceeding (“Claim”) against an Arcserve Indemnitee, whether successful or not, resulting from or arising in connection with: (i) any gross negligence or willful misconduct by Customer; (ii) any breach by Customer of this Agreement (including, but not limited to, any breach by Customer of its representation or warranties); or (iii) Customer Data (or any portion thereof). Arcserve, at its sole expense, will defend Customer and its directors, officers, employees, contractors, agents, successors and assigns (“Customer Indemnitees”) harmless from and against any and all Claims, and indemnify and hold Customer harmless from damages awarded or paid in settlement of such Claims, (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements incurred in defense thereof) resulting from any Claim against a Customer Indemnitee, whether successful or not, resulting from or arising in connection with: (a) any gross negligence or willful misconduct by Arcserve; or (b) any material failure by Arcserve to maintain the Security Obligations. The indemnifying party’s indemnification obligations under this section are conditioned upon the indemnified party: (x) giving prompt notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim; (y) granting sole control of the defense and settlement of the Claim to the indemnifying party (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of or result in any ongoing liability to the indemnified party); and (z) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, to defend assistance in the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding any terms to the foregoingcontrary in this Agreement, if the Company has delivered a written failure to give notice to the Executive to indemnifying party within a reasonable time of the effect that commencement of any Claim under this section will relieve the Company disputes its potential indemnifying party of any liability to the Executive indemnified party under this Section 8section, and if only to the extent that such dispute is resolved in favor of failure materially prejudices the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required indemnifying party’s ability to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of defend such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationClaim.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Terms of Service, Terms of Service, Terms of Service
Indemnification. 8.1 If at All parties expressly agree, by doing business with the WBC, to indemnify and hold harmless the WBC, affiliated federations and committees, and all officers, members of the Board of Governors, representatives, attorneys, and agents (each, a “WBC Indemnified Party”) thereof against any time and all losses, claims, damages, liabilities, penalties, actions, judgments, suits, costs, expenses, and disbursements (including the Executive is a reasonable and actual fees, charges and disbursements of any counsel for any WBC Indemnified Party, incurred by any WBC Indemnified Party or asserted against any WBC Indemnified Party by any third party or is threatened to be made a party to by any threatenedperson arising out of the actions of such WBC Indemnified Party or any actual or prospective claim, pending or completed actionlitigation, suit investigation or proceeding, whether civilbased on contract, criminaltort or any other theory, administrative whether brought by a third party or investigativeby any person directly, and regardless of whether any WBC Party is a party thereto, AND INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY ACTION OR INACTION ARISING FROM ANY WBC INDEMNIFIED PARTY’S NEGLIGENCE OR STRICT LIABILITY, such that no WBC Indemnified Party shall be held liable for or not be indemnified for any action taken in good faith and not resulting from gross negligence or willful misconduct of such WBC Party, as determined by reason the CAS or any other court of competent jurisdiction by final and non-appealable judgment. In order to attempt to hold the fact that he is WBC liable for gross negligence or was a director, officer, employee or agent of the Companywillful misconduct, or is under any other theory of liability or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprisedamages, the Company shall indemnify complainant must prove their case by the Executive standards of proof and hold him harmless law applied by the CAS. Under any circumstances, should the WBC be found liable to any party, all parties by doing business with the WBC expressly agree that their sole and exclusive monetary remedy that may be recoverable from the WBC is limited to a maximum (but not a minimum) of sanction fees paid to the WBC relating to the last contest that gave rise to their claim against reasonable expenses the WBC. All parties including boxers doing business with or otherwise associated with the WBC expressly waive any and all claims for special, indirect, consequential or punitive damages (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him as opposed to direct or actual damages) in connection with such actionany claim against the WBC or any other WBC Indemnified Party. In no event shall the WBC be liable to for punitive, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing atconsequential, participating indirect, or defending any threatenedindirect damages, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate inincluding, but not controllimited to, lost profits, loss of earning capacity, delay, interest or attorney fees, directly or indirectly resulting from any defense act or settlement controlled by omission of the Executive pursuant to this Section 8.3(c)WBC, and the Company shall bear its own costs and expenses with respect to such participationemployees, officers, affiliated Federations, Governors, or agents.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Registered Promoter Agreement, Professional Boxer’s Compliance Agreement, Registered Promoter Agreement
Indemnification. 8.1 If at (a) Lessee shall defend, indemnify, and hold Lessor harmless from, and reimburse Lessor for, any time the Executive is loss, cost, expense, liability, or damage (including without limitation reasonable attorney’s fees and costs with a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason reasonable estimate of the fact that he is or was a director, officer, employee or agent allocable cost of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive legal counsel and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him staff in connection with such actionor in any way related to, suit any breach or proceeding default in the performance of any obligation to be performed by Lessee under the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating interms of this Agreement, or defending any threatenedintentional misconduct or negligence of Lessee, pending or completed actionany officer, suit agent, employee, guest, or proceeding, whether civil, criminal, administrative invitee of Lessee or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim sublessee of Lessee, regardless of whether such intentional misconduct or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreementnegligence was active or passive.
(b) Within 30 days after receipt Lessor shall defend, indemnify, and hold Lessee harmless from, and reimburse Lessee for, any loss, costs, expense, liability, or damage (including without limitation reasonable attorney’s fees and costs with a reasonable estimate of the allocable cost of legal counsel and staff, in connection with or in any way related to any breach or default in the performance of any Claim Notice (“Election Period”), obligation to be performed by Lessor under the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under terms of this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, Agreement during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim term hereof or any cross-complaint against intentional misconduct or negligence of Lessor, or any person. The Executive may participate in but not controlofficer, any defense agent, employee, guest, or settlement invitee of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to Lessor, regardless of whether such participationintentional misconduct or negligence was active or passive.
(c) If In the Company fails event of the occurrence of any event which a party asserts is an indemnifiable event pursuant to this paragraph, such party shall notify the Executive within other party promptly and, if such event involves the Election Period that claim of any third person, the Company elects to defend notified party shall have sole control over, and shall assume all expense with respect to, the Executive pursuant to Subsection 8.3(b)defense, settlement, adjustment, or compromise of any claim as to which this paragraph requires it to indemnify the other, provided that (i) the other may, if it so desires, employ counsel at its own expense to assist in the Company elects to defend handling of such claim and (ii) the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle indemnifying party shall obtain the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense prior written approval of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consentother party, which shall not be unreasonably withheld, before entering into any settlement, adjustment, or compromise or settlement of such Third Party Claim. Notwithstanding the foregoingclaim or ceasing to defend against such claim, if pursuant thereto or as a result thereof there would be imposed injunctive or other similar relief against the Company has delivered a written notice to other party. All indemnification obligations hereunder shall survive the Executive to the effect that the Company disputes its potential liability to the Executive under expiration or earlier termination of this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationAgreement.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Hospital Lease Purchase Agreement, Hospital Lease Purchase Agreement, Hospital Lease Purchase Agreement
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive Company agrees to indemnify and hold harmless the Subscriber, its affiliates and their respective officers, directors, employees, agents and controlling persons (icollectively, the “Indemnified Parties”) shall promptly notify from and against , any and all loss, liability, damage or deficiency suffered or incurred by any Indemnified Party by reason of any misrepresentation or breach of warranty by the Company or, after any applicable notice and/or cure periods, nonfulfillment of any third-party claim covenant or claims asserted against him (“Third Party Claim”) that could give rise agreement to a right of indemnification under this Agreement and (ii) shall transmit to be performed or complied with by the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement, the Transaction Documents; and will promptly reimburse the Indemnified Parties for all expenses (including reasonable fees and expenses of legal counsel) as incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim related to or arising in any manner out of any of the foregoing, or any action or proceeding arising therefrom (collectively, “Proceedings”), whether or not such Indemnified Party is a formal party to any such Proceeding.
(b) Within 30 days after receipt of If for any Claim Notice reason (“Election Period”)other than a final non-appealable judgment finding any Indemnified Party liable for losses, claims, damages, liabilities or expenses for its gross negligence or willful misconduct) the foregoing indemnity is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless, then the Company shall notify the Executive (i) whether the Company disputes its potential liability contribute to the Executive under this Section 8 with respect amount paid or payable by an Indemnified Party as a result of such loss, claim, damage, liability or expense in such proportion as is appropriate to such Third Party Claim and (ii) whether reflect not only the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently relative benefits received by the Company to a final conclusion or settled at on the discretion of one hand and the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedingsAdvisor on the other, including any compromise or settlement thereof. The Executive is hereby authorized, at but also the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of relative fault by the Company and not prejudicial to the Company. If requested by the CompanyIndemnified Party, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting as well as any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationrelevant equitable considerations.
(c) If the Company fails Each Subscriber agrees to notify the Executive within the Election Period that the Company elects to severally and not jointly indemnify, hold harmless, reimburse and defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full its Subsidiaries and each of its officers, directors, agents, Affiliates, control persons and principal shareholders, against any claim, cost, expense, liability, obligation, loss or damage (including reasonable legal fees) of such defense and proceedings; providedany nature, however, that the Executive may not enter into, without incurred by or imposed upon the Company’s consent, its Subsidiary or any such person which shall not be unreasonably withheldresults, arises out of or is based upon (i) any material misrepresentation by the Subscriber or breach of any warranty by the Subscriber in this Agreement or in any Exhibits or Schedules attached hereto or (ii) after any applicable notice and/or cure periods, any compromise breach or settlement default in performance by the Subscriber of such Third Party Claimany covenant or undertaking to be performed by the Subscriber hereunder, or any other Transaction Documents entered into by the Company and Subscriber relating hereto. Notwithstanding the foregoing, if in no event shall the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, Subscriber hereunder be greater than the Company shall not be required to bear aggregate subscription amount paid for the costs and expenses of Securities as set forth on the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationsignature page hereto.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Subscription Agreement (BillMyParents, Inc.), Subscription Agreement (Socialwise, Inc. (Formerly Known as IdeaEdge, Inc)), Subscription Agreement (Socialwise, Inc. (Formerly Known as IdeaEdge, Inc))
Indemnification. 8.1 If at any time (a) Subject to the Executive is a party or is threatened subrogation provisions of this Lease, Xxxxxx agrees to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses Landlord and its former and current elected and appointed officials, agents, consultants and employees (including attorneys’ fees)collectively, judgments“Landlord Parties”) harmless, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full fullest extent permitted by law.
8.2 Expenses , from all liabilities, losses, interest, damages, costs and/or expenses (including including, without limitation, reasonable attorneys’ fees) , whether suit is instituted or not, and if instituted, whether incurred by the Executive in appearing atat any trial, participating inappellate or post judgment level), threatened or assessed against, levied upon, or defending collected from, any threatenedLandlord Party arising out of, pending from, or completed actionin any way connected with or arising from the negligence, suit recklessness, or proceeding, whether civil, criminal, administrative or investigative, shall be paid by intentional wrongful misconduct of Tenant in the Company at reasonable intervals in advance performance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification its obligations under this Agreement Lease. Notwithstanding the foregoing, Tenant shall not be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of required to indemnify any third-party claim or claims asserted against him (“Third Landlord Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to any liability, loss, damages, costs or expenses suffered as a result of the negligence and/or willful misconduct of such claim (if any)Landlord Party. To the extent this indemnification clause or any other indemnification clause in this Lease is subject to the provisions of Chapter 725, Florida Statutes, and such does not comply with Chapter 725, Florida Statutes, as such may be amended, such provision shall hereby be interpreted as the basis of his request parties’ intention for the indemnification under this Agreementclauses and to comply with Chapter 725, Florida Statutes, as such may be amended.
(b) Within 30 days after receipt of Tenant shall not have any Claim Notice (“Election Period”), obligation to indemnify or defend the Company shall notify the Executive Landlord Parties against any claims brought against any Landlord Party by any third party challenging: (i) whether Landlord’s legal authority to lease all or any portion of the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and Premises; (ii) the Town Commission’s judgment in leasing all or any portion of the Premises; or (iii) Landlord’s decision to enter into this Lease or the terms and provisions of this Lease, regardless of whether such claim seeks monetary damages or injunctive, declaratory or other relief. Provided however, that if any third party brings any claims against Landlord and Tenant, Tenant shall have the Company desires, at its sole cost and expense, responsibility to defend the Executive allegations against such Third Party Claim by any appropriate proceedings, it. The provisions of this Section shall survive the expiration or earlier termination of this Lease. Any tort liability to which proceedings Landlord is exposed under this Lease shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect limited to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company extent permitted by applicable law and not prejudicial subject to the Companyprovisions and monetary limitations of Section § 768.28, Florida Statutes, as it may be amended. If requested by the Company, the Executive agrees, at the Company’s sole cost Landlord expressly does not waive any of its rights and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationimmunities under § 768.25.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Ground Lease, Ground Lease, Ground Lease
Indemnification. 8.1 If at Each Party (the “Indemnitor”) shall release, defend, indemnify and hold harmless the other party, its affiliates, its contractors, and their respective members, partners, directors, officers, shareholders, managers, employees, agents and representatives from and against any time the Executive is a party or is threatened to be made a party to any threatenedand all losses, pending or completed damages, fines, liens, levies, penalties, claims, demands, causes of action, suit suits, legal or proceedingadministrative proceedings, whether civilorders, criminalgovernmental actions and judgments of every kind and character, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable any and all costs and expenses (including including, without limitation, reasonable attorneys’ fees), judgmentsreasonable expert witness fees, finesand court costs) related thereto (collectively, penalties“Claims”) which arise out of, amounts paid result from or relate in settlement and other liabilities actually and reasonably incurred by him in connection with such actionany way, suit directly or proceeding indirectly, to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company a breach of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to by the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party ClaimIndemnitor, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
or (b) Within 30 days after receipt the acts or omissions hereunder of the Indemnitor or its affiliates, contractors, and their respective members, partners, directors, officers, shareholders, managers, employees, agents and representatives. Producer shall specifically defend, indemnify and hold Gavilon (and its respective Indemnitee Group) harmless from and against any and all Claims asserted by third parties that arise from the condition or quality of the Product sold hereunder, except to the extent such Claims are the result of the acts or omissions of Gavilon, its agents or any third party following Delivery hereunder. The Party claiming indemnification shall give prompt written notice to the Indemnitor of any Claim Notice (“Election Period”), matter for which the Company Indemnitor may become liable under this provision. Such notice shall notify contain full details of the Executive (i) whether matter in order to provide the Company disputes Indemnitor with sufficient information to assess its potential liability and to undertake defense of the Claim. The indemnified Party shall have the right at all times to participate in the preparation for and conducting of any hearing, trial or other proceeding related to the Executive under provisions of this Section 8 with respect Section, as well as the right to appear on its own behalf at any such Third hearing, trial or other proceeding. Any such participation or appearance by the indemnified Party Claim and (ii) whether the Company desires, shall be at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate in all reasonable respects with the Company Indemnitor and its counsel in contesting defending any Third Party Claim Claims and shall not take any action that the Company elects is reasonably likely to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any personbe detrimental to such defense. The Executive may participate in but not control, any defense or settlement of any Third Indemnitor shall obtain written approval from the indemnified Party Claim controlled by the Company * Portion omitted pursuant to this Section 8.3 request for confidential treatment filed separately with the Securities and Exchange Commission. prior to any settlement that might impose obligations or restrictions on the Company shall bear his costs and expenses with respect to such participationindemnified Party.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Distiller’s Grain Off Take Agreement (Lincolnway Energy, LLC), Distiller’s Grain Off Take Agreement (Lincolnway Energy, LLC), Distiller’s Grain Off Take Agreement (Lincolnway Energy, LLC)
Indemnification. 8.1 If 11.1 Retailer, at its own cost and expense, shall defend, indemnify and hold harmless GSI and any time of its officers, directors, employees or agents from and against all damages, expenses, liabilities and other costs (including reasonable attorneys fees and court costs) arising as a consequence of GSI providing services pursuant to this Agreement a) from or related to a claim that GSI infringes a third party copyright, trademark or trade secret relating to Retailer's tradename or any other name set forth on Schedule 1 to this Agreement; or b) from Retailer's gross negligence, wilful or intentional misconduct.
11.2 GSI, at its own cost and expense, shall defend, indemnify and hold harmless Retailer and any of its officers, directors, employees or agents from and against all damages, expenses, liabilities and other costs (including reasonable attorneys fees and court costs) arising a) from a claim made by any consumer that is related in any way to the Executive is Retailer's Web Site or GSI's services to Retailer provided pursuant to this Agreement, but excluding a party or is threatened claim for which GSI would have the right to be made a party indemnification pursuant to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the CompanyParagraph 11.1 above, or is b) from GSI's gross negligence, wilful or was serving at the request of the Company intentional misconduct and arising as a director, officer, employee or agent consequence of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding GSI providing services pursuant to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt 11.3 Retailer shall have sole control of any Claim Notice (“Election Period”)defense of any claim made pursuant to Section 11.1 above, the Company but GSI shall cooperate with Retailer in providing such defense.
11.4 GSI shall have sole control of any defense of any claim made pursuant to Section 11.2 above, but Retailer shall cooperate with Retailer in providing such defense.
11.5 Any party seeking indemnification shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to other party as soon as possible after such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion party seeking indemnification becomes aware of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationclaim.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: E Commerce Agreement (Global Sports Inc), E Commerce Agreement (Global Sports Inc), E Commerce Agreement (Global Sports Inc)
Indemnification. 8.1 If at (a) The Company will indemnify and hold harmless the Management Provider and each Management Provider Person (each such person, an “Indemnified Party”) from and against any time and all losses, claims, damages, liabilities, costs and expenses, whether joint or several (the Executive “Liabilities”), related to, arising out of or in connection with this Agreement or the Services contemplated by this Agreement or the engagement of the Management Provider pursuant to, and the performance by the Management Provider of the Services contemplated by, this Agreement, whether or not pending or threatened, whether or not an Indemnified Party is a party party, whether or is threatened to be made a party to not resulting in any threatened, pending liability and whether or completed not such action, suit claim, suit, investigation or proceeding, whether civil, criminal, administrative proceeding is initiated or investigative, brought by reason of the fact that he is or was a director, officer, employee or agent on behalf of the Company, or is or was serving at the request of the . The Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive will reimburse any Indemnified Party for all reasonable costs and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement fees and other liabilities actually and reasonably expenses) as they are incurred by him in connection with such investigating, preparing, pursuing, defending or assisting in the defense of any action, suit claim, suit, investigation or proceeding for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. The Company will not be liable under the foregoing indemnification provision with respect to any particular Liability of an Indemnified Party solely to the full extent permitted that such is determined by law.
8.2 Expenses (including a court, in a final judgment from which no further appeal may be taken, to have resulted primarily from the gross negligence or willful misconduct of such Indemnified Party. The attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, fees and other expenses of an Indemnified Party shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding as they are incurred upon receipt of an undertaking agreement by or on behalf of the Executive Indemnified Party to repay such amounts if it shall ultimately be is finally judicially determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below the Liabilities in this Section 8.3.
(a) The Executive (i) shall promptly notify question resulted primarily from the Company gross negligence or willful misconduct of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this AgreementIndemnified Party.
(b) Within 30 days after receipt The Company acknowledges and agrees that the Indemnified Parties have certain rights to indemnification and/or insurance provided by the Management Provider and certain of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability affiliates and that such additional rights to indemnification and/or insurance are intended to be secondary to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by primary obligation of the Company to a final conclusion or settled at indemnify the discretion of the Company in accordance with this Subsection 8.3(b)Indemnified Parties hereunder. The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled obligations to provide indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, limited in any compromise or settlement manner by the availability of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice additional indemnification and/or insurance that may be available to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationIndemnified Parties.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Management Services Agreement (Select Energy Services, Inc.), Management Services Agreement (Select Energy Services, Inc.), Management Services Agreement (Select Energy Services, Inc.)
Indemnification. 8.1 If at (a) The Company hereby indemnifies the Bank and holds it harmless against, and shall reimburse the Bank for, any time the Executive is a party loss, damage or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses expense (including attorneys’ fees)reasonable fees and expenses, judgments, fines, penalties, amounts paid in settlement court costs and other liabilities actually and reasonably incurred by him in connection with such actionexpenses) including, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing atbut not limited to, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify unpaid charges, fees, and Returned Items for which the Company of any third-party claim and/or the Secured Party originally received credit or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement remittance by the Bank, and (ii) any loss, damage or expense the Bank shall transmit incur as a result of (A) entering into or acting pursuant to this Agreement, (B) honoring and following any instruction the Bank may receive from (or shall believe in good faith to be from) the Secured Party or the Company a written notice under this Agreement, and (“Claim Notice”C) describing in reasonable detail the nature upon implementation of the Third Party ClaimNotice, not honoring or following any instruction it shall receive from (or shall believe in good faith to be from) the Company in accordance with this Agreement. The Company shall not be responsible for any loss, damage, or expense that a copy court having jurisdiction shall have determined had been caused by the Bank’s gross negligence or willful misconduct in its performance of all papers served with respect to such claim (if any), and the basis of his request for indemnification its obligations under this Agreement.
(b) Within 30 days after receipt of Without limiting in any Claim Notice (“Election Period”)way the Secured Party’s obligation to pay or reimburse the Bank as otherwise specified in this Agreement, the Company Secured Party hereby indemnifies the Bank and holds it harmless against any loss, damage or expense (including attorneys’ reasonable fees and expenses, court costs and other expenses) which the Bank shall notify incur as a result of honoring or following any instruction (including the Executive Notice) it shall receive from (ior shall believe in good faith to be from) whether the Company disputes its potential liability to the Executive Secured Party under this Section 8 with respect to such Third Agreement. The Secured Party Claim and (ii) whether the Company desiresshall not be responsible for any loss, at its sole cost and expensedamage, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings or expense that a court having jurisdiction shall be prosecuted diligently have determined had been caused by the Company to a final conclusion Bank’s gross negligence or settled at the discretion willful misconduct in its performance of the Company in accordance with its obligations under this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationAgreement.
(c) If the Company fails No party hereto shall be liable to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b)any other party under this Agreement for lost profits or special, indirect, exemplary, consequential or punitive damages, even if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive such party shall have the right to defend, at the sole cost and expense been advised of the Company, the Third Party Claim. The Executive shall have full control possibility of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationdamages.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Credit Agreement (New Century Transportation, Inc.), Credit Agreement (Osi Systems Inc), Credit Agreement (Osi Systems Inc)
Indemnification. 8.1 If at The Transferor agrees to indemnify, defend and hold the Retention Holder, the Issuer, the Trustee and any time of their respective managers, members, officers, directors, employees, agents and professional advisors (any one of which is an “Indemnified Party”) harmless from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and any other reasonable costs, fees and expenses (provided that any indemnification for damages is limited to actual damages, not consequential, special or punitive damages) that such Person may sustain as a result of the Executive failure of the Transferor to perform its duties in compliance in all material respects with the terms of this Agreement, except to the extent arising from the gross negligence, willful misconduct or fraud by the Person claiming indemnification; provided that, for the avoidance of doubt, the obligations of the Transferor set forth in Section 7.2 shall constitute the sole recourse to the Transferor for any breach of the representations or warranties set forth in Section 3.2. An Indemnified Party shall promptly notify the Transferor if a claim is made by a third party or is threatened with respect to this Agreement, and the Transferor shall assume (with the consent of the Indemnified Party, such consent not to be made a party unreasonably withheld) the defense and any settlement of any such claim and pay all expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against the Indemnified Party in respect of such claim. The parties agree that the provisions of this Section 6.1 shall not be interpreted to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, provide recourse to the Transferor against loss by reason of the fact that he is bankruptcy, insolvency or was a director, officer, employee or agent lack of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt creditworthiness of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim Obligor or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served issuer with respect to such claim (if any)a Collateral Obligation, and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), Transferor does not hereby agree to maintain the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion solvency of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 Retention Holder or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigationIssuer. The Company may participate in, but not control, Transferor shall have no liability for making indemnification hereunder to the extent any defense such indemnification constitutes recourse for uncollectible or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationuncollected amounts payable under any Collateral Obligation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Master Loan Sale Agreement, Master Loan Sale Agreement (NewStar Financial, Inc.), Master Loan Sale Agreement (NewStar Financial, Inc.)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the The Company shall indemnify the Executive and hold him harmless DCCP and its members, employees, agents, representatives and affiliates (each being an “Indemnified Party”) from and against reasonable expenses (including attorneys’ fees)any and all losses, judgmentsclaims, finesdamages and liabilities to which such Indemnified Party may become subject under any applicable law or under any claim made by any third party or otherwise, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit directly or proceeding indirectly relating to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance arising out of the final disposition engagement of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any)DCCP pursuant to, and the basis performance by DCCP of his request for indemnification under the services contemplated by, this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third reimburse any Indemnified Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses (including reasonable attorneys’ fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim, or any action or proceeding arising therefrom, whether or not such litigationIndemnified Party is a party hereto. The Company may participate inwill not be liable under this Section 7, but not control, and an Indemnified Party shall reimburse the Company for any defense or settlement controlled related payments made by the Executive pursuant to Company under this Section 8.3(c)7, and to the extent that any loss, claim, damage, liability, cost or expense is determined by a court or arbitral tribunal, in a final judgment from which no further appeal may be taken, to have resulted primarily from the gross negligence or willful misconduct of such Indemnified Party. No Indemnified Party shall be liable to the Company shall bear or any of its own costs and expenses with affiliates for honest mistakes of judgment, or for any action or inaction, taken in good faith in the performance of services under this Agreement to the extent such action would satisfy the standards for indemnification set forth in this Section 7. DCCP makes no representations or warranties, express or implied, in respect of the services to such participation.
(d) The indemnification be provided by this Section 8 shall apply any Indemnified Party acting within the scope of his, her or its employment or authority. In no event will any of the parties hereto be liable to any other party hereto for any indirect, special, incidental or consequential damages, including lost profits or savings, whether or not such damages are foreseeable, or in respect of any liabilities relating to any third party claims (whether based in contract, tort or otherwise) other than for claims relating to the negligence of a party is alleged or provedservices which may be provided by DCCP hereunder.
Appears in 4 contracts
Samples: Professional Services Agreement (Caliburn International Corp), Professional Services Agreement (Caliburn International Corp), Professional Services Agreement (Caliburn International Corp)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason (a) Each of the fact that he is or was a directorDepositor, officerthe Servicer, employee or agent the Master Servicer, the Securities Administrator, and any Servicing Function Participant (each, an “Indemnifying Party”) engaged by any such party, shall indemnify and hold harmless each of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseServicer, the Company shall indemnify Master Servicer, the Executive Securities Administrator, the Trustee and hold him harmless the Depositor, respectively, and each of its directors, officers, employees, agents, and affiliates from and against reasonable expenses (including attorneys’ fees)any and all claims, judgmentslosses, damages, penalties, fines, penaltiesforfeitures, amounts paid in settlement reasonable legal fees and related costs, judgments and other liabilities actually costs and reasonably incurred expenses arising out of or based upon (a) any breach by him such party of any if its obligations hereunder, including particularly its obligations to provide any annual statement of compliance, annual assessment of compliance with Servicing Criteria or attestation report or any information, data or materials required to be included in any Exchange Act report, (b) any material misstatement or omission in any information, data or materials provided by such party including any material misstatement or material omission in (i) any annual statement of compliance, annual assessment of compliance with Servicing Criteria or attestation report delivered by it, or by any Servicing Function Participant engaged by it, pursuant to this Agreement, or (ii) any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information provided by it, or (c) the negligence, bad faith or willful misconduct of such indemnifying party in connection with such actionits performance hereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Servicer, suit the Master Servicer, the Securities Administrator, the Trustee or proceeding the Depositor, as the case may be, then each Indemnifying Party agrees that it shall contribute to the full extent permitted amount paid or payable by law.
8.2 Expenses (including attorneys’ fees) the Servicer, the Master Servicer, the Securities Administrator, the Trustee or the Depositor, as applicable, as a result of any claims, losses, damages or liabilities incurred by such party in such proportion as is appropriate to reflect the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance relative fault of the final disposition indemnified party on the one hand and the indemnifying party on the other. This indemnification shall survive the termination of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify or the Company termination of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”)The Depositor, the Company Servicer, the Securities Administrator and the Trustee shall immediately notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 Master Servicer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans which would entitle the Depositor, the Servicer, the Securities Administrator, the Trustee or the Trust to indemnification from the Master Servicer, whereupon the Master Servicer shall assume the defense of any such Third Party Claim claim and (ii) whether the Company desirespay all expenses in connection therewith, at its sole cost including counsel fees, and expensepromptly pay, to defend the Executive discharge and satisfy any judgment or decree which may be entered against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion it or settled at the discretion of the Company them in accordance with this Subsection 8.3(b). The Company shall have full control respect of such defense claim. If the Master Servicer and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense such indemnified party have a conflict of interest with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Companysuch claim, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive indemnified party shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationretain separate counsel.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2006-Ff5), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2006-Ff7), Pooling and Servicing Agreement (Hsi Asset Securitization Corp)
Indemnification. 8.1 If at 25.1 Except as otherwise provided herein, each Party shall be responsible only for service(s) and facility(ies) which are provided by that Party, its authorized agents, subcontractors, or others retained by such Parties and neither Party shall bear any time responsibility for the Executive is service(s) and facility(ies) provided by the other Party, its agents, subcontractors, or others retained by such Parties.
25.2 Except as otherwise provided herein, and to the extent not prohibited by law and not otherwise controlled by tariff, each Party (the “Indemnifying Party”) shall release, defend and indemnify the other Party (the “Indemnified Party”) and hold such Indemnified Party harmless against any Loss to a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason Third Party arising out of the fact that he is negligence or was a directorwillful misconduct (“Fault”) by such Indemnifying Party, officerits agents, employee or agent of the Companyits End Users, contractors, or is or was serving at the request of the Company as a directorothers retained by such Parties, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit the Indemnifying Party’s provision of services or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification functions under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive Agreement, provided, however, that (i) shall promptly notify with respect to employees or agents of the Company Indemnifying Party, such Fault occurs while performing within the scope of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and their employment, (ii) shall transmit with respect to subcontractors of the Indemnifying Party, such Fault occurs in the course of performing duties of the subcontractor under its subcontract with the Indemnifying Party, and (iii) with respect to the Company a written notice (“Claim Notice”) describing in reasonable detail Fault of employees or agents of such subcontractor, such Fault occurs while performing within the nature scope of their employment by the Third Party Claim, a copy of all papers served subcontractor with respect to such claim duties of the subcontractor under the subcontract.
25.3 In the case of any Loss alleged or made by an End User of either Party, the Party whose End User alleged or made such Loss (if any)“Indemnifying Party”) shall defend and indemnify the other Party (“Indemnified Party”) against any and all such Claims or Losses by its End Users regardless of whether the underlying service or product was provided by, or network element was provisioned by, the Indemnified Party, unless the loss was caused by the gross negligence or intentional misconduct of the Indemnified Party.
25.4 Each Party shall be released, indemnified, defended and held harmless by the basis other Party (“Indemnifying Party”) against any Loss arising from the Indemnifying Party’s use of his request services or elements provided under this Agreement involving:
25.4.1 Any Claim or Loss arising from such Indemnifying Party’s use of products and services offered under this Agreement, involving any Claim for indemnification under libel, slander, invasion of privacy, or infringement of Intellectual Property rights arising from the Indemnifying Party’s or its End User’s use.
25.4.2 The foregoing includes any Claims or Losses arising from disclosure of any End User-specific information associated with either the originating or terminating numbers used to provision products or services provided hereunder and all other Claims arising out of any act or omission of the End User in the course of using any products or services provided pursuant to this Agreement.
(b) Within 30 days after receipt 25.4.3 The foregoing includes any Losses arising from Claims for actual or alleged infringement of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability Intellectual Property right of a Third Party to the Executive extent that such Loss arises from an Indemnifying Party’s or an Indemnifying Party’s End User’s use of products or services provided under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsAgreement; provided, however, that an Indemnifying Party’s obligation to defend and indemnify the Executive may not enter into, without the Company’s consent, which Indemnified Party shall not be unreasonably withheld, any compromise apply:
25.4.3.1 where an Indemnified Party or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive End User modifies products or services; provided under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.Agreement; and
Appears in 4 contracts
Samples: Traffic Termination Agreement, Traffic Termination Agreement, Traffic Termination Agreement
Indemnification. 8.1 If at The Company agrees to indemnify and hold harmless each of the Investors and each officer, director of the Investors or person, if any, who controls the Investors within the meaning of the Securities Act against any time losses, claims, damages or liabilities, joint or several (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys' fees), to which the Executive Investors may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon the breach of any term of this Agreement by the Company. This indemnity agreement will be in addition to any liability which the Company may otherwise have. Each Investor agrees that it will indemnify and hold harmless the Company, and each officer, director of the Company or person, if any, who controls the Company within the meaning of the Securities Act, against any losses, claims, damages or liabilities (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys' fees) to which the Company or any such officer, director or controlling person may become subject under the Securities Act or otherwise, insofar as such losses claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon the breach of any term of this Agreement by the Investor. This indemnity agreement will be in addition to any liability which the Investors or any subsequent assignee may otherwise have. Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is a party or is threatened to be made a against the indemnifying party under this Section, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than as to the particular item as to which indemnification is then being sought solely pursuant to this Section. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate in, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, assume the defense thereof, subject to the provisions herein stated and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan legal or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably subsequently incurred by him such indemnified party in connection with such actionthe defense thereof other than reasonable costs of investigation, suit or proceeding unless the indemnifying party shall not pursue the action to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the its final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b)conclusion. The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive indemnified party shall have the right to defendemploy separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the sole cost and expense of the Companyindemnifying party if the indemnifying party has assumed the defense of the action with counsel reasonably satisfactory to the indemnified party; provided that if the indemnified party is one of the Investors, the Third Party Claim. The Executive fees and expenses of such counsel shall be at the expense of the indemnifying party if (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party, or (ii) the named parties to any such action (including any impleaded parties) include both the Investors and the indemnifying party and the Investors shall have full control been advised by such counsel that there may be one or more legal defenses available to the indemnifying party in conflict with any legal defenses which may be available to the Investors (in which case the indemnifying party shall not have the right to assume the defense of such defense and proceedings; providedaction on behalf of the Investors, it being understood, however, that the Executive may not enter intoindemnifying party shall, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable only for the reasonable fees and expenses of one separate firm of attorneys for the Investor(s), which firm shall be designated in writing by the Investor(s)). No settlement of any action against an indemnified party shall be made without the Company’s consentprior written consent of the indemnified party, which consent shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 4 contracts
Samples: Series a Preferred Stock Purchase Agreement (Wordcruncher Internet Technologies), Stock Purchase Agreement (Whole Living Inc), Unit Purchase Agreement (Pacific Webworks Inc)
Indemnification. 8.1 Without duplication of any indemnification obligations under the Sales Agreement, Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an “Indemnified Party”) from and against any and all losses (excluding, for the avoidance of doubt, financial losses resulting from the economic terms of any Transaction), claims, damages and liabilities (or actions in respect thereof), joint or several, incurred by or asserted against such Indemnified Party arising out of any breach of any covenant or representation made by Counterparty in this Master Confirmation, any Supplemental Confirmation or the Agreement. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a nonappealable judgment by a court of competent jurisdiction to have resulted from Dealer’s willful misconduct, gross negligence or bad faith in performing the services that are subject of any Transaction. If at for any time reason the Executive foregoing indemnification is a party or is threatened to be made a party unavailable to any threatenedIndemnified Party or insufficient to hold harmless any Indemnified Party, pending then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, payable by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company Indemnified Party as a directorresult of such loss, officerclaim, employee damage or agent of another corporationliability. In addition, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against Counterparty will reimburse any Indemnified Party for all reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement reasonable counsel fees and other liabilities actually and reasonably expenses) as they are incurred by him in connection with such the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceedingarising therefrom, whether civilor not such Indemnified Party is a party thereto and whether or not such claim, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt is initiated or brought by or on behalf of an undertaking by the Executive Counterparty. Counterparty also agrees that no Indemnified Party shall have any liability to repay such amounts if it shall ultimately be determined that he is not entitled Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Master Confirmation or any Supplemental Confirmation except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from the gross negligence, willful misconduct or bad faith of the Indemnified Party. The provisions of this Section 8.3.
9 shall survive the completion of the Transactions contemplated by this Master Confirmation and any Supplemental Confirmation and any assignment and/or delegation of any Transaction made pursuant to the Agreement or this Master Confirmation (a) The Executive (ior any Supplemental Confirmation) shall promptly notify inure to the Company benefit of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right permitted assignee of indemnification under this Agreement and (ii) shall transmit to Dealer. For the Company a written notice (“Claim Notice”) describing in reasonable detail the nature avoidance of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Perioddoubt, any motion, answer or other pleadings which he shall deem necessary or appropriate payments due as a result of this provision may not be used to protect his interests or those set off any obligation of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or Dealer upon settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationTransaction.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Life Storage Lp), Equity Distribution Agreement (Life Storage Lp), At the Market Issuance Sales Agreement (American Homes 4 Rent)
Indemnification. 8.1 If at The Lenders severally agree to indemnify upon demand the Administrative Agent, the Collateral Agent, and each Related Party of any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses foregoing (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred not reimbursed by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company Borrower in accordance with this Subsection 8.3(bits obligations under section 9.5). The Company , according to their respective Ratable Shares, and hold harmless each such Indemnitee from and against any and all Indemnified Liabilities in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of any Related Party; provided, however that no Lender shall have full control be liable for the payment to any Related Party for any portion of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect Indemnified Liabilities to the Third Party Claim)extent determined in a final, nonappealable judgment by a court of competent jurisdiction to file, during the Election Period, have resulted from any motion, answer such Related Party’s own gross negligence or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company willful misconduct; and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; providedprovided further, however, that no action taken in accordance with the Executive may not enter into, without directions of the Company’s consent, which Required Lenders shall not be unreasonably withheld, any compromise deemed to constitute gross negligence or settlement willful misconduct for purposes of such Third Party Claimthis section. Notwithstanding Without limitation of the foregoing, if each Lender agrees to reimburse the Company has delivered a written notice Agents promptly upon demand for its ratable share of any out-of-pocket expenses (including all fees, expenses and disbursements of any law firm or other external counsel and, without duplication, the allocated cost of internal legal services and all expenses and disbursements of internal counsel) incurred by any Agent in connection with the preparation, execution, delivery, administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings, or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement or any other Loan Document, to the Executive to extent that such Agent is not reimbursed for such by the effect that the Company disputes its potential liability to the Executive under Borrower. The undertaking in this Section 8, and if such dispute is resolved in favor shall survive termination of the Company by final, nonappealable order of a court of competent jurisdictionCommitments, the Company shall not be required to bear the costs and expenses payment of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, all other Obligations and the Executive shall reimburse the Company promptly in full for all costs and expenses resignation of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationAgent.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Credit Agreement (Cig Wireless Corp.), Credit Agreement (Cig Wireless Corp.), Credit Agreement (Cig Wireless Corp.)
Indemnification. 8.1 If at The Company agrees to indemnify, defend and hold harmless the Purchaser and the Purchaser’s Affiliates and their respective officers, managers, directors, agents, employees, subsidiaries, partners, members and controlling persons (each, an “Indemnified Party”) to the fullest extent permitted by law from and against any time and all losses, Claims (including, without limitation, any Claim by a third party), damages, expenses (including reasonable fees, disbursements and other charges of counsel incurred by the Executive Indemnified Party in any action between the Company and the Indemnified Party or between the Indemnified Party and any third party (other than a third party who is a party an Affiliate of such Indemnified Party) or is threatened otherwise in the manner described in Section 8.2 below) or other liabilities (collectively, “Losses”) resulting from or arising out of any breach of any representation or warranty, covenant or agreement by the Company in this Agreement (subject to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason the expiration of the fact that he is or was a directorsurvival of such representations and warranties, officer, employee or agent of as provided in Section 10.1). In connection with the Company, or is or was serving at the request obligation of the Company to indemnify for expenses as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseset forth above, the Company shall indemnify the Executive and hold him harmless against shall, upon presentation of appropriate invoices containing reasonable detail, reimburse each Indemnified Party for all such expenses (including attorneys’ reasonable fees), judgments, fines, penalties, amounts paid in settlement disbursements and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) charges of counsel incurred by the Executive Indemnified Party in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of action between the Company and not prejudicial the Indemnified Party or between the Indemnified Party and any third party (other than a third party who is an Affiliate of such Indemnified Party) as they are incurred by such Indemnified Party and to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel extent so provided in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings8.2 below; provided, however, that the Executive may not enter intoif an Indemnified Party is reimbursed under this Article VIII for any expenses, without the Company’s consent, which such reimbursement of expenses shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice refunded to the Executive to the effect extent it is finally judicially determined that the Company disputes its potential liability Indemnified Party is not entitled to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationindemnification hereunder.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Stock and Warrant Purchase Agreement (Tak Sharad Kumar), Stock and Warrant Purchase Agreement (Healthaxis Inc), Stock and Warrant Purchase Agreement (Healthaxis Inc)
Indemnification. 8.1 If at any time 7.1 To the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full fullest extent permitted by law.
8.2 Expenses , and subject to the limitations set forth in Section 6 of this Agreement, each Party (the “Indemnifying Party”) shall indemnify and hold harmless the other Party, and its current and future direct and indirect parent companies, affiliates and their shareholders, officers, directors, employees, agents, servants and assigns (collectively, the “Indemnified Party”), and at the Indemnified Party's option, the Indemnifying Party shall defend the Indemnified Party, from and against any and all claims and/or liabilities for losses, expenses, damage to property, injury to or death of any person, including, but not limited to, the Indemnified Party’s employees and its affiliates’ employees, subcontractors and subcontractors’ employees, or any other liability incurred by the Indemnified Party, including reasonable expenses, legal and otherwise, which shall include reasonable attorneys’ fees) incurred , caused wholly or in part by any negligent, grossly negligent or willful act or omission by the Executive Indemnifying Party, its officers, directors, employees, agents or assigns arising out of this Agreement, except to the extent caused wholly or in appearing atpart by any negligent, participating grossly negligent or willful act or omission of the Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by and unless in the Company at reasonable intervals in advance opinion of counsel for the final disposition Indemnified Party a conflict of such action, suit or proceeding upon receipt of an undertaking by interest between the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served Parties may exist with respect to such claim (claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnified Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if any)a conflict precludes the Indemnifying Party from assuming the defense, and then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s defense through separate counsel of his request for indemnification under this Agreement.
(b) Within 30 days after receipt the Indemnified Party's choice. Even if the Indemnifying Party assumes the defense of any Claim Notice (“Election Period”)the Indemnified Party with acceptable counsel, the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desiresIndemnified Party, at its sole cost and option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder. In no event shall either Party be liable to defend the Executive against such Third other Party Claim for any indirect, special, consequential, or punitive damages of any kind whatsoever, whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this Section 7 shall survive termination of this Agreement, and shall not be limited in any way by any appropriate proceedingslimitation on the amount or type of damages, which proceedings shall be prosecuted diligently compensation or benefits payable by or for the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedingsIndemnifying Party under any statutory scheme, including any compromise or settlement thereof. The Executive is hereby authorizedincluding, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of under any related counterclaim against the person asserting the Third Party Claim Worker’s Compensation Acts, Disability Benefit Acts or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationother Employee Benefit Acts.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Community Choice Aggregator (Cca) Service Agreement, Community Choice Aggregator (Cca) Service Agreement, Community Choice Aggregator (Cca) Service Agreement
Indemnification. 8.1 If at any time Each party required to deliver an Assessment of Compliance and an Accountant’s Attestation and/or an Item 1123 Certification under Article XIV (each, a “Responsible Party) shall indemnify and hold harmless the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseTrust Administrator, the Company shall indemnify Master Servicer and the Executive Depositor and hold him harmless each of their directors, officers, employees, agents, and affiliates from and against reasonable expenses (including attorneys’ fees)any and all claims, judgmentslosses, damages, penalties, fines, penaltiesforfeitures, amounts paid in settlement reasonable legal fees and related costs, judgments and other liabilities actually costs and reasonably incurred expenses arising out of or based upon (a) any breach by him such Responsible Party of any if its obligations under this Article XIV including particularly its obligation to provide any Back-Up Certification, any Assessment of Compliance and an Accountant’s Attestation and/or an Item 1123 Certification or any information, data or materials required to be included in any 1934 Act report,, (b) any misstatement or omission in any information, data or materials provided by such Responsible Party (or, in the case of the Trust Administrator or Master Servicer, any material misstatement or material omission in (i) any 1123 Certification, Assessment of Compliance or Accountant’s Attestation delivered by it, or by any Servicing Function Participant engaged by it, pursuant to this Agreement or (ii) any additional Form 10-D, Form 10-K or Form 8-K disclosure concerning the Master Servicer or the Trust Administrator, or (c) the negligence, bad faith or willful misconduct of such Responsible Party in connection with such actionthe performance of any if its obligations hereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, suit the Trust Administrator or proceeding the Depositor, then each Responsible Party agrees that it shall contribute to the full extent permitted amount paid or payable by law.
8.2 Expenses (including attorneys’ fees) Trust Administrator, the Master Servicer or the Depositor, as applicable, as a result of any claims, losses, damages or liabilities incurred by the Executive Master Servicer, the Trust Administrator or the Depositor, as applicable, in appearing atsuch proportion as is appropriate to reflect the relative fault of Trust Administrator or the Depositor, participating inas applicable, or defending any threatenedon the one hand and such Responsible Party, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, on the other. This indemnification shall be paid by survive the Company at reasonable intervals in advance termination of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify or the Company termination of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (CSMC Mortgage-Backed Trust Series 2006-4), Pooling and Servicing Agreement (CSMC Mortgage-Backed Trust 2006-6), Pooling and Servicing Agreement (CSMC Mortgage-Backed Trust Series 2006-5)
Indemnification. 8.1 If at (a) The Company, as applicable, will indemnify, defend, exonerate and hold harmless any Consultant Related Parties from and against any and all actions, causes of action, suits, claims, liabilities, losses, damages, costs and expenses (including, without limitation reasonable attorneys’ fees, expenses and disbursements) incurred by such Consultant Related Parties or any of them before, on or after the date of this Agreement, arising out of, incurred in connection with or as a result of, or in any way relating to, (i) this Agreement or the conduct of the respective businesses of the Company or any members of the StandardAero Group, (ii) services provided by the Consultant or any Consultant Designee to the Company or any members of the StandardAero Group from time to time pursuant to this Agreement or (iii) the Executive exercise, enforcement or preservation of any rights or remedies under this Agreement (collectively, the “Indemnified Liabilities”); provided that the foregoing indemnification rights will not be available to the extent that a court of competent jurisdiction determines by final non-appealable judgment or order that such Indemnified Liabilities arose on account of such Consultant Related Party’s gross negligence or willful misconduct; and provided, further, that if and to the extent that the foregoing right to indemnification may be unavailable or unenforceable for any reason, the Company hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
(b) The Company, as applicable, will reimburse any Consultant Related Party for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which the Consultant Related Party would be entitled to indemnification under the terms of Section 7(a), or any action or proceeding arising therefrom, whether or not such Consultant Related Party is a party thereto. The Company agree that it will not, without the prior written consent of the Consultant, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated hereby (if any Consultant Related Party is a party thereto or has been threatened to be made a party to any threatenedthereto) unless such settlement, pending compromise or completed actionconsent includes an unconditional release of the Consultant Related Party from all liability, suit without future obligation or prohibition on the part of such Consultant Related Party, arising or that may arise out of such claim, action or proceeding, whether civil, criminal, administrative and does not contain an admission of guilt or investigative, by reason liability on the part of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationConsultant Related Party.
(c) If The rights of any Consultant Related Party to indemnification hereunder will be in addition to any other rights any such person may have under any other agreement or instrument referenced above or any other agreement or instrument to which such Consultant Related Party is or becomes a party or is or otherwise becomes a beneficiary or under law or regulation. The Company hereby acknowledges that each Consultant Related Party may have certain rights to indemnification, advancement of expenses and/or insurance provided by one or more persons or entities with whom or which such Consultant Related Party may be associated (including, without limitation, any other Consultant Related Party). The Company hereby acknowledges and agrees that (i) the Company fails shall be the indemnitors of first resort with respect to notify the Executive within the Election Period that any Indemnified Liability, (ii) the Company elects shall be primarily liable for all Indemnified Liabilities and any indemnification afforded to defend the Executive pursuant to Subsection 8.3(b)any Consultant Related Party in respect of any Indemnified Liabilities, whether created by law, organizational or if the Company elects to defend the Executive pursuant to Subsection 8.3(bconstituent documents, contract (including this Agreement) but fails to diligently and promptly prosecute or settle the Third otherwise, (iii) any obligation of any other person or entity with whom or which any Consultant Related Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter intobe associated (including, without the Company’s consent, which shall not be unreasonably withheldlimitation, any compromise or settlement other Consultant Related Party) to indemnify such Consultant Related Party and/or advance expenses to such Consultant Related Party in respect of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice any proceeding shall be secondary to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor obligations of the Company by finalhereunder, nonappealable order of a court of competent jurisdiction, (iv) the Company shall not be required to bear indemnify each Consultant Related Party and advance expenses to each Consultant Related Party hereunder to the costs fullest extent provided herein without regard to any rights such Consultant Related Party may have against any other person or entity with whom or which such Consultant Related Party may be associated (including, without limitation, any other Consultant Related Party) or insurer of any such person or entity and expenses (v) the Company (on behalf of themselves and their respective insurers) irrevocably waives, relinquishes and releases any other person or entity with whom or which any Consultant Related Party may be associated from any claim of contribution, subrogation or any other recovery of any kind in respect of amounts paid by the Company hereunder. In the event any other person or entity with whom or which any Consultant Related Party may be associated (including, without limitation, any other Consultant Related Party) or their insurers advances or extinguishes any liability or loss which is the subject of any Indemnified Liability owed by the Company or payable under any insurance policy provided under this Agreement, the payor shall have a right of subrogation against the Company or their respective insurer or insurers, as applicable, for all amounts so paid which would otherwise be payable by the Company or their respective insurer or insurers under this Agreement. In no event will payment of an Indemnified Liability under this Agreement by any other person or entity with whom or which any Consultant Related Party may be associated (including, without limitation, other Consultant Related Parties) or their insurers affect the obligations of the Executive’s defense pursuant Company hereunder or shift primary liability for any Indemnified Liability to this Section 8 any other person or of the Company’s participation therein at the Executive’s requestentity with whom or which such Consultant Related Party may be associated (including, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not controlwithout limitation, any defense or settlement controlled by the Executive pursuant to this Section 8.3(cother Consultant Related Party), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Consulting Services Agreement (StandardAero, Inc.), Consulting Services Agreement (StandardAero, Inc.), Consulting Services Agreement (StandardAero, Inc.)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company The Seller shall indemnify the Executive Purchaser and its successors, transferees, and assigns (including each Secured Party) (each of the foregoing Persons being individually called an “Indemnified Party”) against, and hold him each Indemnified Party harmless against reasonable from, any and all costs, losses, claims, damages, liabilities and related expenses (including attorneys’ the reasonable and documented out-of- pocket fees), judgments, fines, penalties, amounts paid in settlement charges and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to disbursements of any outside counsel for any Indemnitee) (all of the full extent permitted by law.
8.2 Expenses (including attorneys’ feesforegoing being collectively called “Indemnified Amounts”) incurred by any Indemnified Party or awarded against any Indemnified Party by any Person (including the Executive in appearing at, participating in, or defending Seller) other than such Indemnified Party arising out of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid material breach by the Company at reasonable intervals in advance Seller of any of its obligations hereunder or arising as a result of the failure of any representation or warranty of the Seller herein to be true and correct in all material respects on the date such representation or warranty was made; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such Indemnified Amounts (w) are determined by a court of competent jurisdiction by final disposition and nonappealable judgment to have resulted from the gross negligence, fraud, bad faith or willful misconduct of such actionIndemnified Party or its reckless disregard of its duties hereunder or any Transaction Document, suit or proceeding upon receipt of an undertaking (x) result from a claim brought by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims Seller against an Indemnified Party for indemnification under this Agreement shall be asserted and resolved as is set forth below breach in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control bad faith of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the CompanyIndemnified Party’s sole cost and expense (but only if he is actually entitled to indemnification obligations hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, under any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoingTransaction Document, if the Company Seller has delivered obtained a written notice to the Executive to the effect that the Company disputes final and nonappealable judgment in its potential liability to the Executive under this Section 8, and if favor on such dispute is resolved in favor of the Company claim as determined by final, nonappealable order of a court of competent jurisdiction, (y) include any punitive, indirect, consequential, special damages, lost profits or other similar damages or (z) constitute Collateral Obligations which are uncollectible due to the Company shall not be required financial inability to bear pay of any obligor on a Transferred Asset. If the costs and expenses of the Executive’s defense Seller has made any payment pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, 2.2 and the Executive shall reimburse the Company promptly recipient thereof later collects any payments from others (including insurance companies) in full for all costs and expenses respect of such litigation. The Company may participate in, but amounts or is found in a final and nonappealable judgment by a court of competent jurisdiction not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect be entitled to such participationindemnification, then the recipient agrees that it shall promptly repay to the Seller such amounts collected.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Sale and Contribution Agreement (Owl Rock Technology Finance Corp.), Sale and Contribution Agreement (Owl Rock Technology Income Corp.), Sale and Contribution Agreement (Owl Rock Capital Corp II)
Indemnification. 8.1 If at The Company will indemnify and hold harmless BMP, its affiliates and their respective partners (both general and limited), members (both managing and otherwise) and Representatives (each such person being an “Indemnified Party”) from and against any time and all actions, suits, investigations, losses, claims, damages and liabilities, including in connection with seeking indemnification, whether joint or several (the Executive “Liabilities”), related to, arising out of or in connection with the Transactions, the Services or other services contemplated by this Agreement or the engagement of BMP pursuant to, and the performance by BMP of the Services or other services contemplated by, this Agreement, whether or not pending or threatened, whether or not an Indemnified Party is a party, whether or not resulting in any liability and whether or not such action, claim, suit, investigation or proceeding is initiated or brought by the Company. The Company will reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. The Company agrees that it will not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been threatened to be made a party to any threatenedthereto) unless such settlement, pending compromise or completed actionconsent includes an unconditional release of the Indemnified Party from all liability, suit without future obligation or prohibition on the part of the Indemnified Party, arising or that may arise out of such claim, action or proceeding, whether civil, criminal, administrative and does not contain an admission of guilt or investigative, by reason liability on the part of the fact Indemnified Party. The Company will not be liable under the foregoing indemnification provision with respect to any particular loss, claim, damage, liability, cost or expense of an Indemnified Party that he is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted solely from the gross negligence or was a director, officer, employee or agent willful misconduct of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including such Indemnified Party. The attorneys’ fees), judgments, fines, penalties, amounts paid in settlement fees and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, expenses of an Indemnified Party shall be paid by the Company at reasonable intervals as they are incurred upon receipt, in advance of the final disposition of such actioneach case, suit or proceeding upon receipt of an undertaking by or on behalf of the Executive Indemnified Party to repay such amounts if it shall ultimately be is finally judicially determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below the Liabilities in this Section 8.3.
(a) The Executive (i) shall promptly notify question resulted solely from the Company gross negligence or willful misconduct of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b)Indemnified Party. The Company shall have full control rights of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled an Indemnified Party to indemnification hereunder will be in addition to any other rights and remedies any such person may have under any other agreement or if the Company assumes the defense with respect instrument to the Third which each Indemnified Party Claim), to file, during the Election Period, any motion, answer is or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of becomes a party or is alleged or provedotherwise becomes a beneficiary or under any law or regulation.
Appears in 3 contracts
Samples: Transaction and Management Fee Agreement (Apria, Inc.), Transaction and Management Fee Agreement (Apria, Inc.), Transaction and Management Fee Agreement (Ahny-Iv LLC)
Indemnification. 8.1 If at 1) Phage agrees to indemnify and hold harmless the Purchaser(s), its Affiliates, and each Person, if any, who controls Purchaser(s), or any time of its Affiliates, within the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason meaning of the fact that he is Securities Act or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses Exchange Act (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claimeach, a copy of all papers served with respect to such claim (if any"Controlling Person"), and the basis respective partners, agents, employees, officers and Directors of his request for indemnification under this Agreement.
the Purchasers, their Affiliates and any such Controlling Person (beach a "Purchaser Indemnified Party") Within 30 days after receipt of any Claim Notice (“Election Period”and collectively, the "Purchaser Indemnified Parties"), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim from and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not controland all losses, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs claims, damages, liabilities and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter intoincluding, without limitation and as incurred, reasonable costs of investigating, preparing or defending any such claim or action, whether or not such the Company’s consentPurchasers Indemnified Party is a party thereto, which shall provided that Phage will not be unreasonably withheld, obligated to advance such costs to any compromise or settlement of the Purchasers Indemnified Party other than the Purchasers unless it has received from such Third the Purchasers Indemnified Party Claim. Notwithstanding an undertaking to repay to Phage the foregoing, costs so advanced if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company it should be determined by final, nonappealable order final judgment of a court of competent jurisdictionjurisdiction that such the Purchasers Indemnified Party was not entitled to indemnification hereunder with respect to such costs) which may be incurred by such the Purchasers Indemnified Party in connection with any investigative, the Company shall administrative or judicial proceeding brought or threatened that relates to or arises out of, or is in connection with any activities contemplated by any Transaction Agreement or any other services rendered in connection herewith; provided that Phage will not be required responsible for any claims, liabilities, losses, damages or expenses that are determined by final judgment of a court of competent jurisdiction to bear result from such the costs Purchasers Indemnified Party's gross negligence, willful misconduct or bad faith.
2) The Purchasers agrees to indemnify and expenses hold harmless Phage, its Affiliates, and each Person, if any, who controls Phage, or any of its Affiliates, within the meaning of the Executive’s defense pursuant to this Section 8 Securities Act or of the Company’s participation therein at the Executive’s requestExchange Act (each, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(ca "Controlling Person"), and the respective employees, officers and Directors of Phage (each a "Company shall bear its own costs Indemnified Party") and collectively, the "Company Indemnified Parties"), from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation and as incurred, reasonable costs of investigating, preparing or defending any such claim or action, whether or not such Company Indemnified Party is a party thereto, provided that the Purchasers will not be obligated to advance such costs to any Company Indemnified Party other than Phage unless it has received from such Company Indemnified Party an undertaking to repay to the Purchaser the costs so advanced if it should be determined by final judgment of a court of competent jurisdiction that such Company Indemnified Party was not entitled to indemnification hereunder with respect to such participation.
(dcosts) The indemnification which may be incurred by such Company Indemnified Party in connection with any investigative, administrative or judicial proceeding brought or threatened that relates to or arises out of, or is in connection with any activities contemplated by any Transaction Agreement or any other services rendered in connection herewith; provided that the Purchasers will not be responsible for any claims, liabilities, losses, damages or expenses that are determined by this Section 8 shall apply whether or not the negligence final judgment of a party is alleged court of competent jurisdiction to result from such Company Indemnified Party's gross negligence, willful misconduct or provedbad faith.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Phage Therapeutics International Inc), Securities Purchase Agreement (Phage Therapeutics International Inc), Securities Purchase Agreement (Phage Therapeutics International Inc)
Indemnification. 8.1 If at (a) The Borrower hereby indemnifies and holds harmless each Finance Party, the Funding Agents and each of their respective Affiliates and their (and their Affiliates’) respective officers, advisors, directors and employees (collectively, the “Indemnified Parties”) from and against any time and all claims, damages, losses, liabilities, costs and expenses (including fees and disbursements of counsel, which must be reasonable so long as no Event of Default is continuing), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including in connection with any investigation, litigation or proceeding or the Executive preparation of a defence in connection therewith), in each case arising out of or in connection with or by reason of this Agreement, the other Finance Documents, the Funding Agreement or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the “Indemnified Liabilities”), except (i) to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or wilful misconduct or is a party claim, damage, loss, liability or expense which would have been compensated under other provisions of the Finance Documents but for any exclusions applicable thereunder and (ii) with respect to claims, damages, losses, liability or expenses arising solely under the Funds Flow Agreement, to the extent the same are not attributable to the Borrower’s breach of the terms thereof.
(b) In the case of an investigation, litigation or other proceeding to which the indemnity in this Clause 13.6 (Indemnification) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is threatened to be made brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other Person or an Indemnified Party is otherwise a party to thereto.
(c) Each Indemnified Party shall:
(i) furnish the Borrower with prompt notice of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative other claim covered by this Clause 13.6 (Indemnification);
(ii) not agree to any settlement or investigative, by reason compromise of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with any such action, suit or proceeding to claim without the full extent permitted by law.Borrower’s prior consent;
8.2 Expenses (including attorneys’ feesiii) incurred by cooperate fully in the Executive in appearing at, participating in, or defending Borrower’s defence of any threatened, pending or completed such action, suit or proceedingother claim (provided that the Borrower shall reimburse such Indemnified Party for its out-of- pocket expenses incurred pursuant hereto, whether civilwhich must be reasonable so long as no Event of Default is continuing); and
(iv) at the Borrower’s request, criminal, administrative or investigative, shall be paid by permit the Company at reasonable intervals in advance Borrower to assume control of the final disposition defence of any such claim, other than regulatory, supervisory or similar investigations, provided that:
(A) the Borrower acknowledges in writing its obligations to indemnify such Indemnified Party in accordance with the terms herein in connection with such claims;
(B) the Borrower shall keep such Indemnified Party fully informed with respect to the conduct of the defence of such claim;
(C) the Borrower shall consult in good faith with such Indemnified Party (from time to time and before taking any material decision) about the conduct of the defence of such claim;
(D) the Borrower shall conduct the defence of such claim properly and diligently taking into account its own interests and those of such Indemnified Party;
(E) the Borrower shall employ counsel reasonably acceptable to such Indemnified Party and at the Borrower’s expense; and
(F) the Borrower shall not enter into a settlement with respect to such claim unless either:
(I) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of such Indemnified Party and contains a provision unconditionally releasing such Indemnified Party and each other Indemnified Party from, and holding all such Persons harmless against, all liability in respect of claims by any releasing party; or
(II) such Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed).
(d) Notwithstanding the Borrower’s election to assume the defence of an action, suit or other claim pursuant to paragraph (c) above, the Indemnified Party shall have the right to employ separate counsel and to participate in the defence of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company Borrower shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b)fees, or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate separate counsel if:
(i) the use of counsel chosen by the Borrower to represent such Indemnified Party would present such counsel with an actual or potential conflict of interest;
(ii) the actual or potential defendants in, but not controlor targets of, any defense such action include both the Borrower and such Indemnified Party and such Indemnified Party shall have concluded that there may be legal defences available to it which are different from or settlement controlled by additional to those available to the Executive pursuant Borrower and determined that it is necessary to this Section 8.3(cemploy separate counsel in order to pursue such defences (in which case the Borrower shall not have the right to assume the defence of such action on such Indemnified Party’s behalf), and ;
(iii) the Company Borrower shall bear its own costs and expenses with respect not have employed counsel reasonably acceptable to such participationIndemnified Party to represent such Indemnified Party within a reasonable time after notice of the institution of such action; or
(iv) the Borrower authorises such Indemnified Party to employ separate counsel at the Borrower’s expense.
(de) The indemnification provided by this Section 8 If any sum due from the Borrower under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:
(i) making or filing a claim or proof against the Borrower;
(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings; the Borrower shall apply whether as an independent obligation, within three (3) Business Days of demand, indemnify each Indemnified Party to whom that Sum is due against any cost, loss or not liability arising out of or as a result of the negligence conversion including any discrepancy between (A) the rate of a party is alleged exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or provedrates of exchange available to that Indemnified Party at the time of its receipt of that Sum.
Appears in 3 contracts
Samples: Fifth Amendment and Restatement Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, described in Section 8.1 shall be paid by the Company at reasonable intervals in advance of prior to the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
8.4 To the extent that the Company’s obligations under this Section 8 fail to qualify under the exception from deferred compensation under Treas. Reg. §1.409A-1(b)(10), then those obligations failing to so qualify shall instead become the obligations to reimburse the Executive for the costs, expenses and other amounts described in this Section 8 and/or incurred by Executive, subject to the limitations and requirements of Section 23(iii) of this Agreement.
Appears in 3 contracts
Samples: Employment Agreement (Lufkin Industries Inc), Employment Agreement (Lufkin Industries Inc), Employment Agreement (Lufkin Industries Inc)
Indemnification. 8.1 If at In consideration of the execution and delivery of this Agreement by Tennessee Farmers, the Borrowers, to the fullest extent permitted by applicable law, hereby indemnify, exonerate and hold Tennessee Farmers and each of their respective officers, directors, employees and agents (collectively, the "Indemnified Parties") free and harmless from and against any time the Executive and all actions, causes of action, suits, losses, costs, liabilities and damages, and expenses incurred in connection therewith (irrespective of whether any such Indemnified Party is a party or to the action for which indemnification hereunder is threatened to be made a party to any threatenedsought), pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason including reasonable attorneys' fees of counsel for the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseIndemnified Parties and disbursements (collectively, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees"Indemnified Liabilities"), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating inIndemnified Parties or any of them as a result of, or defending any threatenedarising out of, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.relating to
(a) The Executive (i) shall promptly notify any investigation or proceeding related to any environmental cleanup, audit, compliance or other matter relating to the Company protection of the environment or the Release by the Borrowers of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.Hazardous Material; or
(b) Within 30 days after receipt the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, discharging or releases from, any real property owned or operated by the Borrowers of any Claim Notice Hazardous Material (“Election Period”including without limitation any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under any Environmental Law), regardless of whether caused by, or within the Company control of, the Borrowers. Notwithstanding any contrary provision in this Agreement, the Borrowers shall notify the Executive (i) whether the Company disputes its potential liability have no obligation hereunder to the Executive under this Section 8 indemnify or hold harmless any Indemnified Party against or with respect to such Third Party Claim and any liability, loss, damage, suit, action, proceeding or claim (iiincluding any attorneys' fees or legal expenses incident thereto) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim under any Environmental Laws or similar laws caused by or resulting from any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion Hazardous Material being first placed on any of the Company in accordance with this Subsection 8.3(b). The Company shall have full Borrowers' real estate at or after the time Tennessee Farmers or a Lender obtains possession or control of such defense and proceedingsproperty, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect whether pursuant to the Third Party Claim), to file, during the Election Period, exercise of rights and remedies available under any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial Loan Documents or otherwise or as a result of conveyance of title to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel Tennessee Farmers or a Lender in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control lieu of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationexercise.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Bridge and Consolidated Term Loan Agreement (Donlar Biosyntrex Corp), Bridge and Consolidated Term Loan Agreement (Donlar Corp), Bridge and Consolidated Term Loan Agreement (Donlar Corp)
Indemnification. 8.1 If at any time (a) Subject to the Executive is a party or is threatened to be made a party to any threatenedlimitations set forth in Section 7.3, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request each of the Company as a directorand the IFM Overseas agrees to indemnify, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive defend and hold him harmless the Investor and its respective officers, managers, directors, agents, employees, subsidiaries, partners, members and controlling persons (each, a “IFM Indemnified Party”) to the fullest extent permitted by law from and against reasonable any and all losses, claims, or written threats thereof (including, without limitation, any claim by a third party), damages, expenses (including attorneys’ reasonable fees), judgments, fines, penalties, amounts paid in settlement disbursements and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) charges of counsel incurred by the Executive IFM Indemnified Party in appearing atany action between the Company and the IFM Indemnified Party or between the IFM Indemnified Party and any third party or otherwise in the manner described in Section 7.2 below) or other liabilities (collectively, participating in“Losses”) resulting from or arising out of any breach of any representations and warranties of the Company and/or IFM Overseas contained herein, any covenant or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid agreement by the Company at reasonable intervals in advance of the final disposition of such action, suit this Agreement or proceeding upon receipt of an undertaking any certificate delivered by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification Company hereunder or under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Security Purchase Agreement.
(b) Within 30 days after receipt In connection with the obligation of any Claim Notice the Company to indemnify for expenses as set forth in clause (“Election Period”)a) of this Section 7.1, the Company shall notify the Executive upon presentation of appropriate invoices containing reasonable detail, reimburse each IFM Indemnified Party for all such expenses (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim including reasonable fees, disbursements and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently other charges of counsel incurred by the Company to a final conclusion or settled at the discretion of the Company IFM Indemnified Party in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of action between the Company and not prejudicial to the Company. If requested by IFM Indemnified Party or between the Company, the Executive agrees, at the Company’s sole cost IFM Indemnified Party and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim IFM Overseas or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled third party) as they are incurred by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsIFM Indemnified Party; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor expenses arise out of the Company any action, investigation or other proceeding commenced by finala IFM Indemnified Party (other than as a result of any action, nonappealable order of claim or written threat by a court of competent jurisdictionthird party against such IFM Indemnified Party), the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full such IFM Indemnified Party for all costs and such expenses only (x) after the final resolution or disposition of such litigation. The Company may participate inaction, but not controlinvestigation or other proceeding and (y) if such IFM Indemnified Party prevails in such action, investigation or other proceeding; and provided, further, that if a GA Indemnified Party is reimbursed under this Article VII for any defense expenses, such reimbursement of expenses shall be refunded to the extent it is finally judicially determined that such expenses resulted or settlement controlled by arose primarily from the Executive pursuant to this Section 8.3(c)gross negligence, and the Company shall bear its own costs and expenses with respect to bad faith, or willful misconduct of such participationGA Indemnified Party.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Share Sale Agreement (SouFun Holdings LTD), Investor's Rights Agreement (IFM Investments LTD), Investor's Rights Agreement (SouFun Holdings LTD)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the (a) The Company shall indemnify the Executive Holder(s) of the Registrable Securities to be sold pursuant to any registration statement hereunder and hold him harmless any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such Holders or underwriter or persons deemed to be underwriters within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against reasonable expenses all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees), judgments, fines, penalties, amounts paid in settlement ' fees and other liabilities actually and expenses reasonably incurred by him in connection with investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such actionregistration statement. The Holder(s) of the Registrable Securities to be sold pursuant to such registration statement, suit and their successors and assigns, shall severally, and not jointly, indemnify the Company, against all loss, claim, damage, expense or proceeding to the full extent permitted by law.
8.2 Expenses liability (including all reasonable attorneys’ fees) ' fees and other expenses reasonably incurred by the Executive in appearing atinvestigating, participating in, preparing or defending against any threatenedclaim whatsoever) to which they may become subject under the Act, pending the Exchange Act or completed actionotherwise, suit arising from information furnished by or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition on behalf of such actionHolders, suit or proceeding upon receipt of an undertaking by the Executive to repay in writing, for specific inclusion in such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreementregistration statement.
(b) Within 30 days after receipt If any action is brought against a party hereto, ("Indemnified Party") in respect of any Claim Notice which indemnity may be sought against the other party (“Election Period”"Indemnifying Party"), such Indemnified Party shall promptly notify Indemnifying Party in writing of the Company institution of such action and Indemnifying Party shall notify assume the Executive defense of such action, including the employment and fees of counsel reasonably satisfactory to the Indemnified Party. Such Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) whether the Company disputes its potential liability to employment of such counsel shall have been authorized in writing by Indemnifying Party in connection with the Executive under this Section 8 with respect to defense of such Third Party Claim and action, or (ii) whether the Company desires, at its sole cost and expense, Indemnifying Party shall not have employed counsel to defend such action, or (iii) such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which may result in a conflict between the Executive against Indemnified Party and Indemnifying Party (in which case Indemnifying Party shall not have the right to direct the defense of such Third action on behalf of the Indemnified Party), in any of which events, the reasonable fees and expenses of not more than one additional firm of attorneys designated in writing by the Indemnified Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently borne by Indemnifying Party. Notwithstanding anything to the Company to a final conclusion or settled at contrary contained herein, if Indemnified Party shall assume the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control defense of such defense and proceedingsaction as provided above, including Indemnifying Party shall not be liable for any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationaction effected without its written consent.
(c) If the Company fails indemnification or reimbursement provided for hereunder is finally judicially determined by a court of competent jurisdiction to notify the Executive within the Election Period that the Company elects be unavailable to defend the Executive pursuant to Subsection 8.3(ban Indemnified Party (other than as a consequence of a final judicial determination of willful misconduct, bad faith or gross negligence of such Indemnified Party), then Indemnifying Party agrees, in lieu of indemnifying such Indemnified Party, to contribute to the amount paid or payable by such Indemnified Party (i) in such proportion as is appropriate to reflect the relative benefits received, or sought to be received, by Indemnifying Party on the one hand and by such Indemnified Party on the other or (ii) if (but only if) the Company elects allocation provided in clause (i) of this sentence is not permitted by applicable law, in such proportion as is appropriate to defend reflect not only the Executive pursuant relative benefits referred to Subsection 8.3(bin such clause (i) but fails to diligently also the relative fault of Indemnifying Party and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsIndemnified Party; provided, however, that in no event shall the Executive may not enter into, without aggregate amount contributed by a Holder exceed the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoingprofit, if the Company has delivered any, earned by such Xxxxxx as a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor result of the Company exercise by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses him of the Executive’s defense pursuant to this Section 8 or Warrants and the sale by him of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses underlying shares of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationCommon Stock.
(d) The indemnification provided rights accorded to Indemnified Parties hereunder shall be in addition to any rights that any Indemnified Party may have at common law, by this Section 8 shall apply whether separate agreement or not the negligence of a party is alleged or provedotherwise.
Appears in 3 contracts
Samples: Warrant Agreement (Global Telecommunication Solutions Inc), Warrant Agreement (Parkervision Inc), Warrant Agreement (Parkervision Inc)
Indemnification. 8.1 If at Each Party (the “Indemnitor”) shall release, defend, indemnify and hold harmless the other party, its affiliates, its contractors, and their respective members, partners, directors, officers, shareholders, managers, employees, agents and representatives from and against any time the Executive is a party or is threatened to be made a party to any threatenedand all losses, pending or completed damages, fines, liens, levies, penalties, claims, demands, causes of action, suit suits, legal or proceedingadministrative proceedings, whether civilorders, criminalgovernmental actions and judgments of every kind and character, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable any and all costs and expenses (including including, without limitation, reasonable attorneys’ fees), judgmentsreasonable expert witness fees, finesand court costs) related thereto (collectively, penalties“Claims”) which arise out of, amounts paid result from or relate in settlement and other liabilities actually and reasonably incurred by him in connection with such actionany way, suit directly or proceeding indirectly, to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company a breach of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to by the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party ClaimIndemnitor, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
or (b) Within 30 days after receipt the acts or omissions hereunder of the Indemnitor or its affiliates, contractors, and their respective members, partners, directors, officers, shareholders, managers, employees, agents and representatives. Producer shall specifically defend, indemnify and hold Gavilon (and its respective Indemnitee Group) harmless from and against any and all Claims asserted by third parties that arise from the condition or quality of the Product sold hereunder, except to the extent such Claims are the result of the acts or omissions of Gavilon, its agents or any third party following Delivery hereunder. The Party claiming indemnification shall give prompt written notice to the Indemnitor of any Claim Notice (“Election Period”), matter for which the Company Indemnitor may become liable under this provision. Such notice shall notify contain full details of the Executive (i) whether matter in order to provide the Company disputes Indemnitor with sufficient information to assess its potential liability and to undertake defense of the Claim. The indemnified Party shall have the right at all times to participate in the preparation for and conducting of any hearing, trial or other proceeding related to the Executive under provisions of this Section 8 with respect Section, as well as the right to appear on its own behalf at any such Third hearing, trial or other proceeding. Any such participation or appearance by the indemnified Party Claim and (ii) whether the Company desires, shall be at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company indemnified Party shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate in all reasonable respects with the Company Indemnitor and its counsel in contesting defending any Third Party Claim Claims and shall not take any action that the Company elects is reasonably likely to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any personbe detrimental to such defense. The Executive may participate in but not control, Indemnitor shall obtain written approval from the indemnified Party prior to any defense settlement that might impose obligations or settlement of any Third Party Claim controlled by restrictions on the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationindemnified Party.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Distiller’s Grain Off Take Agreement (Heron Lake BioEnergy, LLC), Distiller’s Grain Off Take Agreement (Lincolnway Energy, LLC), Distiller’s Grain Off Take Agreement (Heron Lake BioEnergy, LLC)
Indemnification. 8.1 If (a) From and after the Effective Time through the sixth anniversary of the Effective Date, RCFC (and any successor) agrees to indemnify and hold harmless each present and former director, officer and employee of Bayonne and its Subsidiaries and each officer or employee of Bayonne and its Subsidiaries that is serving or has served as a director or trustee of another entity expressly at Bayonne's request or direction (each, an "Indemnified Party"), against any time the Executive is a party costs or is threatened to be made a party to expenses (including reasonable attorneys' fees), judgments, fines, amount paid in settlement, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any threatenedclaim, pending or completed action, suit suit, proceeding or proceedinginvestigation, whether civil, criminal, administrative or investigative, arising out of matters existing or occurring at or prior to the Effective Time (including the transactions contemplated by reason of this Agreement), whether asserted or claimed prior to, at or after the fact that he is or was a directorEffective Time, officerand to advance any such Costs to each Indemnified Party as they are from time to time incurred, employee or agent of in each case to the Company, or is or was serving at the request of the Company fullest extent such Indemnified Party would have been indemnified as a director, officer, officer or employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, Bayonne and its Subsidiaries and as then permitted under the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this AgreementDGCL.
(b) Within 30 days after receipt Any Indemnified Party wishing to claim indemnification under Section 4.14(a), upon learning of any Claim Notice (“Election Period”)such claim, action, suit, proceeding or investigation, shall promptly notify RCFC thereof, but the Company failure to so notify shall notify not relieve RCFC of any liability it may have hereunder to such Indemnified Party if such failure does not materially and substantially prejudice the Executive indemnifying party. In the event of any such claim, action, suit, proceeding or investigation, (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive RCFC shall have the right to defendassume the defense thereof with counsel reasonably acceptable to the Indemnified Party and RCFC shall not be liable to such Indemnified Party for any legal expenses of other counsel subsequently incurred by such Indemnified Party in connection with the defense thereof, except that if RCFC does not elect to assume such defense within a reasonable time or counsel for the Indemnified Party at any time advises that there are issues which raise conflicts of interest between RCFC and the sole cost Indemnified Party (and expense of the Companycounsel for RCFC does not disagree), the Third Indemnified Party Claim. The Executive may retain counsel satisfactory to such Indemnified Party, and RCFC shall have full control remain responsible for the reasonable fees and expenses of such defense and proceedingscounsel as set forth above, to be paid promptly as statements therefor are received; provided, however, that RCFC shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any one jurisdiction with respect to any given claim, action, suit, proceeding or investigation unless the Executive may use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest; (ii) the Indemnified Party will reasonably cooperate in the defense of any such matter; and (iii) RCFC shall not enter into, be liable for any settlement effected by an Indemnified Party without the Company’s its prior written consent, which shall consent may not be unreasonably withheld, any compromise or withheld unless such settlement is unreasonable in light of such Third claims, actions, suits, proceedings or investigations against, or defenses available to, such Indemnified Party.
(c) RCFC shall pay all reasonable Costs, including attorneys' fees, that may be incurred by any Indemnified Party Claim. Notwithstanding in successfully enforcing the foregoing, if the Company has delivered a written notice indemnity and other obligations provided for in this Section 4.14 to the Executive to fullest extent permitted under the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigationDGCL. The Company rights of each Indemnified Party hereunder shall be in addition to any other rights such Indemnified Party may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationhave under applicable law.
(d) The indemnification provided RCFC shall maintain Bayonne's existing directors and officers' insurance policy (or provide a policy providing comparable coverage and amounts on terms no less favorable to the persons currently covered by Bayonne's existing policy, including RCFC's existing policy if its meets the foregoing standard) covering persons who are currently covered by such insurance for a period of 3 years after the effective date.
(e) In the event RCFC or any of its successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person or entity, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of RCFC assume the obligations set forth in this Section 8 4.14.
(f) The provisions of this Section 4.14 are intended to be for the benefit of, and shall apply whether be enforceable by, each Indemnified Party and his or not the negligence of a party is alleged or provedher representatives.
Appears in 3 contracts
Samples: Merger Agreement (Richmond County Financial Corp), Merger Agreement (Richmond County Financial Corp), Agreement and Plan of Merger (Richmond County Financial Corp)
Indemnification. 8.1 If at any time A. To the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full fullest extent permitted by law, for work or services provided under this Agreement, Contractor shall indemnify, defend, and hold harmless DISTRICT and the County of Sacramento, their respective governing and advisory Boards, (emphasis added for clarity) officers, directors, officials, employees, and authorized volunteers and agents (collectively “Indemnified Parties”), from and against any and all claims, demands, actions, losses, liabilities, damages, and all expenses and costs incidental thereto (collectively “Claims”), including cost of defense, settlement, arbitration, and reasonable attorneys' fees, resulting from injuries to or death of persons, including but not limited to employees of either Party hereto, and damage to or destruction of property, or loss of use or reduction in value thereof, including but not limited to the property of either Party hereto, and recovery of monetary losses incurred by an Indemnified Party directly attributable to the performance of Contractor, arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Contractor, its employees, Contractor’s subconsultants or subcontractors at any tier, or any other party for which Contractor is legally liable under law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, B. The right to defense and indemnity under this Section shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding initiate upon receipt occurrence of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give event giving rise to a right of indemnification under this Agreement and (ii) Claim and, thereafter, upon tender in writing to Contractor. Contractor shall transmit defend Indemnified Parties with counsel reasonably acceptable to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party ClaimCounty. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes County shall be entitled, on its potential liability to the Executive under this Section 8own behalf, and if such dispute is resolved at the expense of Contractor, to assume control of its defense or the defense of any Indemnified Party in favor any legal action, with counsel reasonably selected by it. Should County elect to initially assume control of its defense, or the defense of any Indemnified Party, it does so without prejudice to its right to subsequently request that Contractor thereafter assume control of the Company by final, nonappealable order of a court of competent jurisdiction, the Company defense and pay all reasonable attorneys’ fees and costs incurred thereby.
C. This indemnity obligation shall not be required limited by the types and amounts of insurance or self-insurance maintained by Contractor or Contractor’s subconsultants or subcontractors at any tier.
D. Nothing in this Indemnity obligation shall be construed to bear create any duty to, any standard of care with reference to, or any liability or obligation, contractual or otherwise, to any third party.
E. The provisions of this Indemnity obligation shall survive the costs and expenses expiration or termination of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationAgreement.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Aquatic Slide Resurfacing Agreement, Audit Services Agreement, Audit Services Agreement
Indemnification. 8.1 If at any time the Executive is a party 13.1 Any claim, suit, loss, judgment, damages, fines or is threatened expenses (hereinafter collectively referred to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director“Loss”) sustained by Party B, officerits directors, employee officers, employees, agents or agent representatives (hereinafter collectively referred to as “Indemnified Parties”) in the performance of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigativetheir duties under this Agreement, shall be paid fully indemnified by Party A. Party A shall hold each Indemnified Party harmless against any such Loss and/or liability, unless it is finally determined through legal or administrative procedures or consultations between Party A and Party B that such Loss and/or liability is caused due to the Company at reasonable intervals fault of such Indemnified Party.
13.2 Notwithstanding any other provision of this Agreement, Indemnified Parties shall not be responsible for any loss of Party A or any third party caused by any action or inaction, or by any erroneous decision, on the part of an Indemnity Party in advance discharging its obligations under this Agreement, unless it is finally determined through legal or administrative procedures or consultations between Party A and Party B that such loss was incurred due to the fault of such Indemnified Party.
13.3 If, based on the experiences, capabilities or qualifications of the final disposition of such actionIndemnified Parties, suit the losses described in the above two sections can or proceeding upon receipt of an undertaking by should be expected, the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) Indemnified Parties shall promptly notify Party A of the Company possibility of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise such losses and fulfill appropriate duties and obligations as agreed herein. Otherwise, the Indemnified Parties will not be indemnified according to a right this indemnity clause.
13.4 This indemnity clause shall survive the termination of indemnification under this Agreement, regardless of the manner in which this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreementis terminated.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Policy Management Agreement (China Life Insurance Co LTD), Policy Management Agreement (China Life Insurance Co LTD), Policy Management Agreement (China Life Insurance Co LTD)
Indemnification. 8.1 If at Tenant shall indemnify, defend, and hold harmless Landlord from any time the Executive is and all claims of liability asserted against Landlord and Landlord Parties by a party third party, including without limitation any agency or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason instrumentality of the fact that he is or was a directorfederal, officer, employee or agent of the Companystate, or is local government, for bodily injury, including death of a person, physical damage to or was serving at the request loss of the Company as a directoruse of property, officer, employee or agent cleanup activities (remedial or removal) arising out of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding relating to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating inrelease, or defending threat of release, of a Hazardous Material existing at or emanating from the Premises, to the extent caused by Tenant or Tenant Parties during or prior to the Term of this Lease, or to the extent caused by any threatenedthird party other than Landlord or Landlord Parties during the Term (provided, pending or completed actionhowever, suit or proceedingthat Tenant shall have no indemnification obligations, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification and no liability under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party ClaimLease, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claimmigration of any Hazardous Material on or under the Premises from adjacent properties). Other than those matters for which Tenant is obligated to indemnify Landlord, to fileLandlord shall indemnify, during the Election Perioddefend, and hold harmless Tenant from and against any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those and all claims of the Company and not prejudicial to the Company. If requested liability asserted against Tenant by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contesta third party, including without limitationlimitation any agency or instrumentality of the federal, through state, or local government, for bodily injury, including death of a person, physical damage to or loss of use of property, or cleanup activities (remedial or removal) arising out of or relating to the making release or threat of release of any related counterclaim against Hazardous Material existing at or emanating from the person asserting Premises to the Third Party Claim extent caused by Landlord or Landlord Parties during or after the Term of this Lease or to the extent caused by any cross-complaint against any person. The Executive may participate in but not control, any defense third party other than Tenant or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses Tenant Parties with respect to such participation.
(c) If the Company fails migration of any Hazardous Material on or under the Premises from adjacent properties. Neither party shall be required to notify indemnify, defend or hold harmless the Executive within other for any Hazardous Material existing at or emanating from the Election Period that Premises prior to the Company elects Term of this Lease due to defend the Executive pursuant to Subsection 8.3(b), acts or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense omissions of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsa third party; provided, however, that Landlord and Tenant each shall have the Executive may not enter intoright (and each party shall reasonably cooperate with the other in that regard) to enforce for its own benefit the terms of the environmental indemnification/remediation provisions set forth in or implemented pursuant to (a) Agreement for Purchase and Sale of Real Property and Joint Escrow Instructions between Xxxxxx Healthcare Corporation and Tenant dated March 12, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 81996, and if such dispute is resolved in favor (b) Agreement for Purchase and Sale of the Company by finalReal Property and Joint Escrow Instructions between Xxxxxx Healthcare Corporation and Tenant dated January 15, nonappealable order of a court of competent jurisdiction1996 (collectively, the Company shall not be required to bear the costs “Environmental Indemnity Agreements”) covering certain existing Hazardous Material contamination and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein remediation currently taking place at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationPremises.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Lease Agreement (St John Knits International Inc), Lease Agreement (St John Knits International Inc), Agreement for Purchase and Sale and Lease of Property (St John Knits International Inc)
Indemnification. 8.1 If (a) From and after the Effective Time through the sixth anniversary of the Effective Time, MCBF agrees to indemnify and hold harmless each present and former director and officer of MSB and its Subsidiaries and each officer or employee of MSB and its Subsidiaries that is serving or has served as a director or trustee of another entity expressly at MSB’s request or direction (each, an “Indemnified Party”), against any time the Executive is a party costs or is threatened to be made a party to expenses (including reasonable attorneys’ fees), judgments, fines, amounts paid in settlement, losses, claims, damages or liabilities incurred in connection with any threatenedclaim, pending or completed action, suit suit, proceeding or proceedinginvestigation, whether civil, criminal, administrative or investigative, by reason arising out of matters existing or occurring at or prior to the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses Effective Time (including attorneys’ feesthe transactions contemplated by this Agreement), judgmentswhether asserted or claimed prior to, finesat or after the Effective Time, penaltiesas they are from time to time incurred, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding each case to the full fullest extent such person would have been indemnified or have the right to advancement of expenses pursuant to MSB’s articles of incorporation and bylaws as in effect on the date of this Agreement and to the fullest extent permitted by law.
8.2 Expenses (including attorneys’ feesb) incurred by the Executive in appearing atAny Indemnified Party wishing to claim indemnification under Section 5.13(a), participating inupon learning of any such claim, or defending any threatened, pending or completed action, suit suit, proceeding or proceedinginvestigation, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify MCBF thereof, but the Company failure to so notify shall not relieve MCBF of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect liability it may have hereunder to such claim (Indemnified Party if any), such failure does not materially and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationsubstantially prejudice MCBF.
(c) If MCBF shall maintain MSB’s existing directors’ and officers’ liability insurance policy (or provide a policy providing comparable coverage and amounts on terms no less favorable to the Company fails to notify persons currently covered by MSB’s existing policy, including MCBF’s existing policy if it meets the Executive within foregoing standard) covering persons who are currently covered by such insurance for a period of three years after the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsEffective Time; provided, however, that the Executive may not enter intoin no event shall MCBF be obligated to expend, without the Company’s consent, which shall not be unreasonably withheld, any compromise in order to maintain or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense provide insurance coverage pursuant to this Section 8 or 5.13(c), an amount per annum in excess of 150% of the Company’s participation therein at amount of the Executive’s requestannual premiums paid by MSB as of the date hereof for such insurance (“Maximum Insurance Amount”); provided further, and that if the Executive amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Insurance Amount, MCBF shall reimburse obtain the Company promptly in full most advantageous coverage obtainable for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by an annual premium equal to the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationMaximum Insurance Amount.
(d) The indemnification provided by In the event MCBF or any of its successors or assigns (i) consolidates with or merges into any other person or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person or entity, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of MCBF assume the obligations set forth in this Section 8 5.13.
(e) The provisions of this Section 5.13 are intended to be for the benefit of, and shall apply whether be enforceable by, each Indemnified Party and his or not the negligence of a party is alleged or provedher representatives.
Appears in 3 contracts
Samples: Merger Agreement (Monarch Community Bancorp Inc), Agreement and Plan of Merger (Monarch Community Bancorp Inc), Agreement and Plan of Merger (MSB Financial Inc)
Indemnification. 8.1 If at any time The Borrower agrees to indemnify and hold harmless the Executive is a party Banks, the Issuing Banks, the Lead Arrangers and the Administrative Agent and their affiliates, as well as their and their affiliates’ shareholders, directors, agents, officers, subsidiaries and affiliates, from and against all damages, losses, settlement payments, obligations, liabilities, claims, suits, penalties, assessments, citations, directives, demands, judgments, actions or is threatened causes of action, whether statutorily created or under the common law, and reasonable costs and expenses incurred, suffered, sustained or required to be made a paid by an indemnified party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of or resulting from the fact that he is or was a directortransactions contemplated hereby, officer, employee or agent except any of the Company, foregoing which result from the gross negligence or is willful misconduct of such indemnified party or was serving at the request a material breach of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition obligations of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification indemnified party under this Agreement shall be asserted and resolved or under any other Loan Document, as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim determined by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction. In any investigation, enforcement matter, proceeding or litigation, or the preparation therefor, the Company shall not be required to bear Banks, the costs and expenses of Issuing Banks, the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, Lead Arrangers and the Executive Administrative Agent shall reimburse be entitled to select their own counsel and, in addition to the Company foregoing indemnity, the Borrower agrees to pay promptly in full for all costs the reasonable fees and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by counsel (including the Executive pursuant to this Section 8.3(cnon-duplicative allocated cost of internal counsel), and settlement costs. In the Company event of the commencement of any such proceeding or litigation against the Banks or Administrative Agent by third parties, the Borrower shall bear its own costs be entitled to participate in such proceeding or litigation with counsel of their choice at their expense. In the case of an investigation, litigation or proceeding to which the indemnity in this §16 applies, such indemnity shall be effective, subject to the limitations herein, whether or not such investigation, litigation or proceeding is brought by the Borrower, the Borrower’s equityholders, affiliates or creditors or such an indemnified party, whether or not such indemnified party is otherwise a party thereto and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence transactions contemplated hereby are consummated. The covenants of a party is alleged this §16 shall survive payment or provedsatisfaction of payment of amounts owing with respect to any Note or the Loans and satisfaction of all the Obligations hereunder and under the Loan Documents, IT BEING THE INTENT OF THE PARTIES HERETO THAT ALL SUCH INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR THEIR ORDINARY SOLE, COMPARATIVE OR CONTRIBUTORY NEGLIGENCE. WITHOUT LIMITATION OF THE FOREGOING, NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY IN RESPECT OF ANY INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ASSERTED BY SUCH OTHER PARTY WITH RESPECT TO THE MATTERS CONTEMPLATED BY THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY USE MADE OR TO BE MADE WITH THE PROCEEDS OF ANY CREDIT EXTENSION HEREUNDER OR THEREUNDER.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Waste Management Inc), Revolving Credit Agreement (Waste Management Inc), Revolving Credit Agreement (Waste Management Inc)
Indemnification. 8.1 If at any time Each party required to deliver an Assessment of Compliance and an Accountant’s Attestation and/or an Item 1123 Certification under Article XIII (each, a “Responsible Party) shall indemnify and hold harmless the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseTrust Administrator, the Company shall indemnify Master Servicer and the Executive Depositor and hold him harmless each of their directors, officers, employees, agents, and affiliates from and against reasonable expenses (including attorneys’ fees)any and all claims, judgmentslosses, damages, penalties, fines, penaltiesforfeitures, amounts paid in settlement reasonable legal fees and related costs, judgments and other liabilities actually costs and reasonably incurred expenses arising out of or based upon (a) any breach by him such Responsible Party of any if its obligations under this Article XIII including particularly its obligation to provide any Back-Up Certification, any Assessment of Compliance and an Accountant’s Attestation and/or an Item 1123 Certification or any information, data or materials required to be included in any 1934 Act report,, (b) any misstatement or omission in any information, data or materials provided by such Responsible Party (or, in the case of the Trust Administrator or Master Servicer, any material misstatement or material omission in (i) any 1123 Certification, Assessment of Compliance or Accountant’s Attestation delivered by it, or by any Servicing Function Participant engaged by it, pursuant to this Agreement or (ii) any additional Form 10-D, Form 10-K or Form 8-K disclosure concerning the Master Servicer or the Trust Administrator, or (c) the negligence, bad faith or willful misconduct of such Responsible Party in connection with such actionthe performance of any if its obligations hereunder. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, suit the Trust Administrator or proceeding the Depositor, then each Responsible Party agrees that it shall contribute to the full extent permitted amount paid or payable by law.
8.2 Expenses (including attorneys’ fees) Trust Administrator, the Master Servicer or the Depositor, as applicable, as a result of any claims, losses, damages or liabilities incurred by the Executive Master Servicer, the Trust Administrator or the Depositor, as applicable, in appearing atsuch proportion as is appropriate to reflect the relative fault of Trust Administrator or the Depositor, participating inas applicable, or defending any threatenedon the one hand and such Responsible Party, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, on the other. This indemnification shall be paid by survive the Company at reasonable intervals in advance termination of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify or the Company termination of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (CSMC Mortgage-Backed Trust 2006-7), Pooling and Servicing Agreement (CSMC 2006-8), Pooling and Servicing Agreement (CSMC Mortgage-Backed Trust 2006-7)
Indemnification. 8.1 If at any time the Executive is a party or is threatened You agree to be made a party to any threateneddefend, pending or completed actionindemnify, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of and hold harmless the Company, or is or was serving at the request of the Company as a directorits advertisers, officerlicensors, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement subsidiaries and other liabilities actually affiliated companies, and reasonably incurred by him in connection with such actiontheir employees, suit or proceeding to the full extent permitted by law.
8.2 Expenses (contractors, officers, agents and directors from all liabilities, claims, and expenses, including attorneys’ attorney’s fees) incurred by the Executive in appearing at, participating inthat arise from your use of this site, or defending any threatenedservices, pending information or completed actionproducts from this site, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance any violation of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), . The Company reserves the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desiresright, at its sole cost and it own expense, to defend assume the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full exclusive defense and control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled matter otherwise subject to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim)by you, to file, during the Election Period, any motion, answer or other pleadings in which he event you shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting asserting any Third Party Claim available defenses. LEGAL COMPLIANCE Company may suspend or terminate this Agreement or User’s use immediately upon receipt of any notice which alleges that the Company elects to contestUser has used this site for any purpose that violates any local, state, federal or law of other nations, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not controllimited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, Company may disclose the User’s identity and contact information, if requested by a government or law enforcement body or as a result of a subpoena or other legal action, and Company shall not be liable for damages or results thereof and User agrees not to bring any defense action or settlement of any Third Party Claim claim against Company for such disclosure. CHOICE OF LAW AND FORUM This site (excluding third party linked sites) is controlled by the Company pursuant from its offices within the Kingdom of the Netherlands. It can be access from other countries around the world to the extent permitted by site. As each of these places has laws that may differ from the Kingdom of the Netherlands, by accessing this Section 8.3 site, both you and the Company agree that the statues and laws of the Kingdom of the Netherlands shall bear his costs apply to any actions or claims arising out of or in relation to this Agreement or your use of this site, without regard to conflicts of laws principles thereof. You and expenses with respect to such participation.
(c) If the Company fails also agree and hereby submit to notify the Executive within filing of any claim only in the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently exclusive personal jurisdiction and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense venue of the Company, Kingdom of the Third Party ClaimNetherlands and any legal proceedings shall be conducted in the Dutch language. The Executive shall have full control of such defense Company makes no representation that materials on this site are appropriate or available for use in other locations, and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which accessing them from territories where their contents are illegal is prohibited. This Agreement shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled governed by the Executive pursuant to this Section 8.3(c)United Nations Convention on Contracts for the Sale of Goods. CLAIMS OR REPRESENTATIONS EVERY EFFORT HAS BEEN MADE TO ACCURATELY REPRESENT THIS PRODUCT AND IT’S POTENTIAL. EVEN THOUGH THIS INDUSTRY IS ONE OF THE FEW WHERE ONE CAN WRITE THEIR OWN CHECK IN TERMS OF EARNINGS, and the Company shall bear its own costs and expenses with respect to such participationTHERE IS NO GUARANTEE THAT YOU WILL EARN ANY MONEY USING THE TECHNIQUES AND IDEAS IN THESE MATERIALS. EXAMPLES IN THESE MATERIALS ARE NOT TO BE INTERPRETED AS A PROMISE OR GUARANTEE OF EARNINGS. EARNING POTENTIAL IS ENTIRELY DEPENDENT ON THE PERSON USING OUR PRODUCT, IDEAS AND TECHNIQUES. WE DO NOT PURPORT THIS AS A “GET RICH SCHEME.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved” ANY CLAIMS MADE OF ACTUAL EARNINGS OR EXAMPLES OF ACTUAL RESULTS CAN BE VERIFIED UPON REQUEST. YOUR LEVEL OF SUCCESS IN ATTAINING THE RESULTS CLAIMED IN OUR MATERIALS DEPENDS ON THE TIME YOU DEVOTE TO THE PROGRAM, IDEAS AND TECHNIQUES MENTIONED, YOUR FINANCES, KNOWLEDGE AND VARIOUS SKILLS. SINCE THESE FACTORS DIFFER ACCORDING TO INDIVIDUALS, WE CANNOT GUARANTEE YOUR SUCCESS OR INCOME LEVEL. NOR ARE WE RESPONSIBLE FOR ANY OF YOUR ACTIONS. MATERIALS IN OUR PRODUCT AND OUR WEBSITE MAY CONTAIN INFORMATION THAT INCLUDES OR IS BASED UPON FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE USA SECURITIES LITIGATION REFORM ACT OF 1995. FORWARD-LOOKING STATEMENTS GIVE OUR EXPECTATIONS OR FORECASTS OF FUTURE EVENTS. YOU CAN IDENTIFY THESE STATEMENTS BY THE FACT THAT THEY DO NOT RELATE STRICTLY TO HISTORICAL OR CURRENT FACTS. THEY USE WORDS SUCH AS “ANTICIPATE,” “ESTIMATE,” “EXPECT,” “PROJECT,” “INTEND,” “PLAN,” “BELIEVE,” AND OTHER WORDS AND TERMS OF SIMILAR MEANING IN CONNECTION WITH A DESCRIPTION OF POTENTIAL EARNINGS OR FINANCIAL PERFORMANCE. ANY AND ALL FORWARD LOOKING STATEMENTS HERE OR ON ANY OF OUR SALES MATERIAL ARE INTENDED TO EXPRESS OUR OPINION OF EARNINGS POTENTIAL. MANY FACTORS WILL BE IMPORTANT IN DETERMINING YOUR ACTUAL RESULTS AND NO GUARANTEES ARE MADE THAT YOU WILL ACHIEVE RESULTS SIMILAR TO OURS OR ANYBODY ELSES, IN FACT NO GUARANTEES ARE MADE THAT YOU WILL ACHIEVE ANY RESULTS FROM OUR IDEAS AND TECHNIQUES IN OUR MATERIAL.
Appears in 3 contracts
Samples: Terms of Use, Terms of Use, Terms of Use
Indemnification. 8.1 If From and after the Effective Time, each of Parent and the Surviving Corporation shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the Executive is date of this Agreement or who becomes prior to the Effective Time, an officer, director or manager of the Company or any of its Subsidiaries or who acts as a party or is threatened to be made a party to fiduciary under any threatenedCompany Stock Plan, pending or completed in each case, when acting in such capacity (each an “Indemnified Party”) against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit suit, proceeding or proceedinginvestigation, whether civil, criminal, administrative or investigative, by reason arising out of or pertaining to the fact that he the Indemnified Party is or was an officer, director or manager of the Company or any of its Subsidiaries or, while a director, officer, employee manager or agent officer of the CompanyCompany or any of its Subsidiaries, or is or was serving at the request of the Company or one of its Subsidiaries as a director, an officer, employee director or agent manager of another corporationPerson, partnershipwhether pertaining to any act or omission occurring or existing prior to or at, joint venturebut not after the Effective Time and whether asserted or claimed prior to, trustat or after the Effective Time (“Indemnified Liabilities”), employee benefit plan including all Indemnified Liabilities based in whole or other enterprisein part on, or arising in whole or in part out of, or pertaining to, this Agreement or the transactions contemplated by this Agreement, in each case to the fullest extent that the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding would have been permitted to the full extent permitted do so by law.
8.2 Expenses . Each Indemnified Party will be entitled to advancement of expenses (including attorneys’ fees) incurred in the defense of any such claim, action, suit, proceeding or investigation from and each of Parent and the Surviving Corporation within 90 days of receipt by Parent or the Surviving Corporation from the Indemnified Party of a request therefor; provided that any Indemnified Party to whom expenses are to be advanced provides prior to any receipt of such advances an undertaking, to the extent required by the Executive in appearing atDGCL or other applicable Law, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts advances if it shall ultimately be is determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order determination of a court of competent jurisdictionjurisdiction (which determination is not subject to appeal) that such Indemnified Party is not entitled to indemnification under applicable Law. Parent, US Holdco and Merger Sub agree that all rights to indemnification, advancement of expenses, and exculpation by the Company shall not be required to bear now existing in favor of each Indemnified Party as provided in the costs and expenses of the Executive’s defense pursuant to this Section 8 or Charter Documents of the Company’s participation therein , in each case as in effect on the date of this Agreement, or pursuant to any other Contracts in effect on the date hereof, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Executive’s requestEffective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms; provided that the Indemnified Party to whom expenses are advanced provides an undertaking to repay such expenses if it is ultimately determined that such Person is not entitled to indemnification. For a period of six (6) years from the Effective Time, the Surviving Corporation shall, and Parent shall cause the Executive shall reimburse Surviving Corporation to, maintain in effect the exculpation, indemnification, and advancement of expenses no less favorable than the provisions of the Charter Documents of the Company promptly as in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by effect immediately prior to the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses Effective Time with respect to acts or omissions by any Indemnified Party occurring prior to the Effective Time, and shall not amend, repeal, or otherwise modify any such participationprovisions in any manner that would adversely affect the rights thereunder of any Indemnified Party; provided that all rights to indemnification in respect of any claim made for indemnification within such period shall continue until the disposition of such action or resolution of such claim.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Merger Agreement (PRA Health Sciences, Inc.), Merger Agreement (Icon PLC), Merger Agreement (Icon PLC)
Indemnification. 8.1 If at NRG Energy hereby agrees to indemnify and hold harmless each Agent, each Lender and each of their Affiliates and their officers, directors, employees, agents, advisors (including, without limitation, the Advisors) and other representatives (each an "INDEMNIFIED PARTY") from and against any time the Executive is a party and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or is threatened to be made a party to asserted or awarded against any threatenedIndemnified Party, pending in each case arising out of or completed action, suit in connection with or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director(including, officerwithout limitation, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such actionany investigation, suit litigation or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ feesor preparation of a defense in connection therewith) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify this Second Collateral Call Extension Letter or the Company of any third-party claim Xcel Letter or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”)the Proposed Restructuring, the Company shall notify the Executive (i) whether the Company disputes its potential liability except to the Executive under this Section 8 with respect to extent such Third Party Claim and (ii) whether the Company desiresclaim, at its sole cost and expensedamage, to defend the Executive against such Third Party Claim by any appropriate proceedingsloss, which proceedings shall be prosecuted diligently by the Company to liability or expense is found in a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of judgment by a court of competent jurisdictionjurisdiction to have resulted directly and primarily from such Indemnified Party's gross negligence or willful misconduct. In the case of an investigation, litigation or proceeding to which the Company indemnity in this paragraph applies, such indemnity shall be effective whether or not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 such investigation, litigation or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not controlproceeding is brought by any NRG Party, any defense shareholder of any NRG Party, or settlement controlled by the Executive pursuant to this Section 8.3(c), any creditor of any NRG Party or an Indemnified Party or an Indemnified Party is otherwise a party thereto and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the Proposed Restructuring is consummated. NRG Energy further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to it or any of its Subsidiaries or Affiliates or to its or their respective security holders or creditors arising out of, related to or in connection with this Second Collateral Call Extension Letter, the Xcel Letter or the Proposed Restructuring, except for direct, as opposed to consequential, damages determined in a final nonappealable judgment by a court of competent jurisdiction to have resulted directly and primarily from such Indemnified Party's gross negligence of a party is alleged or provedwillful misconduct.
Appears in 3 contracts
Samples: Collateral Call Extension Letter (LSP Batesville Funding Corp), Collateral Call Extension Letter (Xcel Energy Inc), Collateral Call Extension Letter (NRG Energy Inc)
Indemnification. 8.1 If at (a) The Borrower hereby indemnifies and holds harmless each Finance Party, the Funding Agents and each of their respective Affiliates and their (and their Affiliates’) respective officers, advisors, directors and employees (collectively, the “Indemnified Parties”) from and against any time and all claims, damages, losses, liabilities, costs and expenses (including fees and disbursements of counsel, which must be reasonable so long as no Event of Default is continuing), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including in connection with any investigation, litigation or proceeding or the Executive preparation of a defence in connection therewith), in each case arising out of or in connection with or by reason of this Agreement, the other Finance Documents, the Funding Agreement or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the “Indemnified Liabilities”), except (i) to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or wilful misconduct or is a party claim, damage, loss, liability or expense which would have been compensated under other provisions of the Finance Documents but for any exclusions applicable thereunder and (ii) with respect to claims, damages, losses, liability or expenses arising solely under the Funds Flow Agreement, to the extent the same are not attributable to the Borrower’s breach of the terms thereof.
(b) In the case of an investigation, litigation or other proceeding to which the indemnity in this Clause 13.6 (Indemnification) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is threatened to be made brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other Person or an Indemnified Party is otherwise a party to thereto.
(c) Each Indemnified Party shall:
(i) furnish the Borrower with prompt notice of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative other claim covered by this Clause 13.6 (Indemnification);
(ii) not agree to any settlement or investigative, by reason compromise of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with any such action, suit or proceeding to claim without the full extent permitted by law.Borrower’s prior consent;
8.2 Expenses (including attorneys’ feesiii) incurred by cooperate fully in the Executive in appearing at, participating in, or defending Borrower’s defence of any threatened, pending or completed such action, suit or proceedingother claim (provided that the Borrower shall reimburse such Indemnified Party for its out-of-pocket expenses incurred pursuant hereto, whether civilwhich must be reasonable so long as no Event of Default is continuing); and
(iv) at the Borrower’s request, criminal, administrative or investigative, shall be paid by permit the Company at reasonable intervals in advance Borrower to assume control of the final disposition defence of any such claim, other than regulatory, supervisory or similar investigations, provided that:
(A) the Borrower acknowledges in writing its obligations to indemnify such Indemnified Party in accordance with the terms herein in connection with such claims;
(B) the Borrower shall keep such Indemnified Party fully informed with respect to the conduct of the defence of such claim;
(C) the Borrower shall consult in good faith with such Indemnified Party (from time to time and before taking any material decision) about the conduct of the defence of such claim;
(D) the Borrower shall conduct the defence of such claim properly and diligently taking into account its own interests and those of such Indemnified Party;
(E) the Borrower shall employ counsel reasonably acceptable to such Indemnified Party and at the Borrower’s expense; and
(F) the Borrower shall not enter into a settlement with respect to such claim unless either:
(I) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of such Indemnified Party and contains a provision unconditionally releasing such Indemnified Party and each other Indemnified Party from, and holding all such Persons harmless against, all liability in respect of claims by any releasing party; or
(II) such Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed).
(d) Notwithstanding the Borrower’s election to assume the defence of an action, suit or other claim pursuant to paragraph (c) above, the Indemnified Party shall have the right to employ separate counsel and to participate in the defence of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company Borrower shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b)fees, or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate separate counsel if:
(i) the use of counsel chosen by the Borrower to represent such Indemnified Party would present such counsel with an actual or potential conflict of interest;
(ii) the actual or potential defendants in, but not controlor targets of, any defense such action include both the Borrower and such Indemnified Party and such Indemnified Party shall have concluded that there may be legal defences available to it which are different from or settlement controlled by additional to those available to the Executive pursuant Borrower and determined that it is necessary to this Section 8.3(cemploy separate counsel in order to pursue such defences (in which case the Borrower shall not have the right to assume the defence of such action on such Indemnified Party’s behalf), and ;
(iii) the Company Borrower shall bear its own costs and expenses with respect not have employed counsel reasonably acceptable to such participationIndemnified Party to represent such Indemnified Party within a reasonable time after notice of the institution of such action; or
(iv) the Borrower authorises such Indemnified Party to employ separate counsel at the Borrower’s expense.
(de) The indemnification provided by this Section 8 If any sum due from the Borrower under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:
(i) making or filing a claim or proof against the Borrower;
(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings; the Borrower shall apply whether as an independent obligation, within three (3) Business Days of demand, indemnify each Indemnified Party to whom that Sum is due against any cost, loss or not liability arising out of or as a result of the negligence conversion including any discrepancy between (A) the rate of a party is alleged exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or provedrates of exchange available to that Indemnified Party at the time of its receipt of that Sum.
Appears in 3 contracts
Samples: Facility Agreement (Royal Caribbean Cruises LTD), Facility Agreement (Royal Caribbean Cruises LTD), Facility Agreement (Royal Caribbean Cruises LTD)
Indemnification. 8.1 If at The Company will indemnify and hold harmless the Advisors, their Affiliates and their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents and representatives (each such person being an “Indemnified Party”) from and against any time and all actions, suits, investigations, losses, claims, damages and liabilities, including in connection with seeking indemnification, whether joint or several (the Executive “Liabilities”), related to, arising out of or in connection with the Services or other services contemplated by this Agreement or the engagement of the Advisors pursuant to, and the performance by the Advisors of the Services or other services contemplated by, this Agreement, whether or not pending or threatened, whether or not an Indemnified Party is a party, whether or not resulting in any liability and whether or not such action, claim, suit, investigation or proceeding is initiated or brought by the Company. The Company will reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. The Company agrees that it will not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been threatened to be made a party to any threatenedthereto) unless such settlement, pending compromise or completed actionconsent includes an unconditional release of the Indemnified Party from all liability, suit without future obligation or prohibition on the part of the Indemnified Party, arising or that may arise out of such claim, action or proceeding, whether civil, criminal, administrative and does not contain an admission of guilt or investigative, by reason liability on the part of the fact Indemnified Party. The Company will not be liable under the foregoing indemnification provision with respect to any particular loss, claim, damage, liability, cost or expense of an Indemnified Party that he is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted solely from the gross negligence or was a director, officer, employee or agent willful misconduct of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including such Indemnified Party. The attorneys’ fees), judgments, fines, penalties, amounts paid in settlement fees and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, expenses of an Indemnified Party shall be paid by the Company at reasonable intervals as they are incurred upon receipt, in advance of the final disposition of such actioneach case, suit or proceeding upon receipt of an undertaking by or on behalf of the Executive Indemnified Party to repay such amounts if it shall ultimately be is finally judicially determined that he the Liabilities in question resulted solely from the gross negligence or willful misconduct of such Indemnified Party. The rights of an Indemnified Party to indemnification hereunder will be in addition to any other rights and remedies any such person may have under any other agreement or instrument to which each Indemnified Party is not entitled to be indemnified.
8.3 All claims for indemnification or becomes a party or is or otherwise becomes a beneficiary or under this Agreement shall be asserted any law or regulation. The Company acknowledges and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) agrees that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify be fully and primarily responsible for the Executive payment to an Indemnified Party in respect of indemnification or advancement of expenses in connection with any jointly indemnifiable claim (i) whether as defined below), pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery the Indemnified Party may have from the Indemnitee-related entities. Under no circumstance shall the Company disputes its potential liability be entitled to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently right of subrogation or contribution by the Company to a final conclusion Indemnitee-related entities and no right of advancement or settled at recovery the discretion Indemnified Party may have from the Indemnitee-related entities shall reduce or otherwise alter the rights of the Indemnified Party or the obligations of the Company in accordance with this Subsection 8.3(b)hereunder. The Company In the event that any of the Indemnitee-related entities shall have full control of such defense and proceedings, including make any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect payment to the Third Indemnified Party Claim), to file, during the Election Period, any motion, answer in respect of indemnification or other pleadings which he shall deem necessary or appropriate to protect his interests or those advancement of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to any jointly indemnifiable claim, the Indemnitee-related entity making such participation.
(c) If payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnified Party against the Company, and Indemnified Party shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the Indemnitee-related entities effectively to bring suit to enforce such rights. The Company fails and each Indemnified Party agree that each of the Indemnitee-related entities shall be third-party beneficiaries with respect to notify this Section 5, entitled to enforce this Section 5 as though each such Indemnitee-related entity were a party to this Agreement. For purposes of this Section 5, the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive following terms shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.following meanings:
Appears in 3 contracts
Samples: Advisory Fee Agreement (Performance Food Group Co), Advisory Fee Agreement (Performance Food Group Co), Advisory Fee Agreement (Performance Food Group Co)
Indemnification. 8.1 If at 25.1 Each Party agrees to release, indemnify, defend and hold harmless the other Party from and against all losses, claims, demands, damages, expenses, suits or other actions, or any time the Executive is liability whatsoever, including, but not limited to, costs and attorneys' fees (collectively, a "Loss"), (a) whether suffered, made, instituted, or asserted by any other party or is threatened person, relating to be made a party personal injury to or death of any threatenedperson, pending or completed for loss, damage to, or destruction of real and/or personal property, whether or not owned by others, arising from transactions or activities relating to this Agreement and to the extent proximately caused by the negligent or willful acts or omissions of the indemnifying Party, regardless of the form of action, suit or proceeding(b) suffered, whether civilmade, criminalinstituted, administrative or investigative, asserted by reason its own customer(s) against the other Party arising out of the fact that he is or was a director, officer, employee or agent other Party's provision of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding services to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification indemnifying Party under this Agreement shall be asserted and resolved as is set forth below Agreement. Notwithstanding the foregoing indemnification, nothing in this Section 8.325.0 shall affect or limit any claims, remedies, or other actions the indemnifying Party may have against the indemnified Party under this Agreement, any other contract, or any applicable Tariff(s), regulations or laws for the indemnified Party's provision of said services.
25.2 The indemnification provided herein shall be conditioned upon:
(a) The Executive (i) indemnified Party shall promptly notify the Company indemnifying Party of any third-party claim action, claim, lawsuit or claims asserted demand taken against him (“Third the indemnified Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit relating to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreementindemnification.
(b) Within 30 days after receipt The indemnifying Party shall have sole authority to defend any such action, claim, lawsuit or demand including the selection of any Claim Notice (“Election Period”)legal counsel, and the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third indemnified Party Claim and (ii) whether the Company desires, may engage separate legal counsel only at its sole cost and expense. The Indemnifying Party shall keep the Indemnified Party reasonably and timely apprised of the status of the action, to defend the Executive against such Third claim, demand or lawsuit. The Indemnifying Party Claim by any appropriate proceedings, which proceedings shall will not be prosecuted diligently liable under this Section for settlements or compromises by the Company to a final conclusion Indemnified party of any action, claim, demand or settled at lawsuit unless the discretion Indemnifying Party has approved the settlement or compromise in advance or unless the defense of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedingsaction, including any compromise claim, demand or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect lawsuit has been tendered to the Third Indemnifying Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 writing and the Company shall bear his costs and expenses with respect Indemnifying Party has failed to such participationpromptly undertake the defense.
(c) If In no event shall the Company fails indemnifying Party settle or consent to notify any judgment pertaining to any such action without the Executive within prior written consent of the Election Period that indemnified Party, which consent shall not be unreasonably withheld. However, in the Company elects to defend event the Executive pursuant to Subsection 8.3(b)settlement or judgment requires a contribution from or affects the rights of the Indemnified Party, or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Indemnified Party Claim, then the Executive shall have the right to defendrefuse such settlement or judgment and, at the sole its own cost and expense of expense, take over the Companydefense against such Loss, provided that in such event the Third indemnifying Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheldresponsible for, nor shall it be obligated to indemnify the indemnified Party against, the Loss for any compromise or settlement amount in excess of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 refused settlement or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationjudgment.
(d) The indemnification provided indemnified Party shall, in all cases, assert any and all provisions in its Tariffs that limit liability to third parties as a bar to any recovery by this Section 8 the third party claimant in excess of such limitation of liability.
(e) The indemnified Party shall apply whether offer the indemnifying Party all reasonable cooperation and assistance in the defense of any such action, demand or not the negligence of a party is alleged or provedlawsuit.
Appears in 3 contracts
Samples: Interconnection Agreement (Harvardnet Inc), Interconnection Agreement (Harvardnet Inc), Interconnection Agreement (Harvardnet Inc)
Indemnification. 8.1 If at any time Subject to the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason provisions of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprisethis Section 4.4, the Company shall will indemnify the Executive and hold him the Purchasers, the Placement Agent and their directors, officers, shareholders, partners, employees and agents (each, a “Purchaser Party”) harmless against reasonable expenses (from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including attorneys’ fees), all judgments, fines, penalties, amounts paid in settlement settlements, court costs and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including reasonable attorneys’ feesfees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) incurred by any breach of any of the Executive in appearing atrepresentations, participating inwarranties, covenants or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid agreements made by the Company at reasonable intervals in advance this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the final disposition Company who is not an Affiliate of such actionPurchaser, suit or proceeding upon receipt with respect to any of an undertaking the transactions contemplated by the Executive to repay Transaction Documents (unless such amounts if it shall ultimately be determined that he action is not entitled to be indemnified.
8.3 All claims for indemnification based upon a breach of such Purchaser’s representation, warranties or covenants under this Agreement the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be asserted and resolved as is set forth below brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Section 8.3.
(a) The Executive (i) Agreement, such Purchaser Party shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any)writing, and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defendassume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the sole cost and expense of such Purchaser Party except to the Companyextent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Third Party Claim. The Executive shall have full control Company has failed after a reasonable period of time to assume such defense and proceedings; providedto employ counsel or (iii) in such action there is, howeverin the reasonable opinion of such separate counsel, that a material conflict on any material issue between the Executive may position of the Company and the position of such Purchaser Party. The Company will not enter into, be liable to any Purchaser Party under this Agreement (i) for any settlement by an Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld, any compromise withheld or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice delayed; or (ii) to the Executive extent, but only to the effect extent, that the Company disputes its potential a loss, claim, damage or liability is attributable to the Executive under this Section 8, and if such dispute is resolved in favor any Purchaser Party’s breach of any of the Company by finalrepresentations, nonappealable order of a court of competent jurisdictionwarranties, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 covenants or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled agreements made by the Executive pursuant to Purchasers in this Section 8.3(c), and Agreement or in the Company shall bear its own costs and expenses with respect to such participationother Transaction Documents.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Convertible Note Purchase Agreement (Synova Healthcare Group Inc), Convertible Note Purchase Agreement (Synova Healthcare Group Inc), Convertible Note Purchase Agreement (Synova Healthcare Group Inc)
Indemnification. 8.1 If at The Environmental Response Trust shall indemnify, defend and hold harmless (without the Environmental Trust Parties having to first pay from their personal funds) the Environmental Trust Parties from and against any time the Executive is a party or is threatened to be made a party to any threatenedand all claims, pending or completed causes of action, suit liabilities, obligations, losses, costs, judgments, damages or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement ) and any other liabilities actually and reasonably incurred by him assertion of liability arising out of the ownership or environmental condition of Environmental Trust Assets or action or inaction or in connection with such actionthe Environmental Trustee’s duties, suit or proceeding to the full fullest extent permitted by applicable law.
8.2 Expenses , including but not limited to, those caused or alleged to be caused by negligence or fault of any Environmental Trust Party (including attorneys’ fees) incurred by the Executive in appearing atexcept for fraud, participating inwillful misconduct, or defending criminal conduct), provided that such indemnification shall be limited to funds in the relevant Environmental Trust Environmental Cost Account for the DPH Sites if it relates to Environmental Action or the Environmental Trust Administrative Account. Without limiting the foregoing, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, such judgment against a Environmental Trust Party and any such costs of defense relating to any Environmental Trust Party shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate Environmental Response Trust consistent with the Company terms and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making conditions of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party ClaimSection. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive extent fraud, willful misconduct, or criminal conduct of any Environmental Trust Party is alleged and the Court finds, by a final order, not reversed on appeal, that such Environmental Trust Party committed fraud, willful misconduct, or criminal conduct after the Effective Date in relation to the effect Environmental Trustee’s duties, there shall be no indemnification, of that the Company disputes its potential liability Environmental Trust Party, for any judgments arising from such allegations of fraud, willful misconduct, or criminal conduct. It shall be an irrebuttable presumption that any action taken, or inaction, consistent with Court approval shall not constitute willful misconduct or fraud, provided that there has been no misrepresentation to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationCourt.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Joint Stipulation and Agreed Order, Environmental Response Trust Agreement, Environmental Response Trust Agreement
Indemnification. 8.1 If at any time 7.1 To the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full fullest extent permitted by law.
8.2 Expenses , and subject to the limitations set forth in Section 6 of this Agreement, each Party (including attorneys’ feesthe "Indemnifying Party") shall indemnify and hold harmless the other Party, and its current and future direct and indirect parent companies, affiliates and their shareholders, officers, directors, employees, agents, servants and assigns (collectively, the "Indemnified Party") and at the Indemnified Party's option, the Indemnifying Party shall defend the Indemnified Party from and against any and all claims and/or liabilities for losses, expenses, damage to property, injury to or death of any person, including, but not limited to, the Indemnified Party's employees and its affiliates employees, subcontractors and subcontractors employees, or any other liability incurred by the Executive Indemnified Party, including reasonable expenses, legal and otherwise, which shall include reasonable attorneys' fees, caused wholly or in appearing atpart by any negligent, participating grossly negligent or willful act or omission by the Indemnifying Party, its officers, directors, employees, agents or assigns arising out of this Agreement, except to the extent caused wholly or in part by any negligent, grossly negligent or willful act or omission of the Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by and unless in the Company at reasonable intervals in advance opinion of counsel for the final disposition Indemnified Party a conflict of such action, suit or proceeding upon receipt of an undertaking by interest between the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served Parties may exist with respect to such claim (claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnified Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if any)a conflict precludes the Indemnifying Party from assuming the defense, and then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party's defense through separate counsel of his request for indemnification under this Agreement.
(b) Within 30 days after receipt the Indemnified Party's choice. Even if the Indemnifying Party assumes the defense of any Claim Notice (“Election Period”)the Indemnified Party with acceptable counsel, the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desiresIndemnified Party, at its sole cost and option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder. In no event shall either Party be liable to defend the Executive against such Third other Party Claim for any indirect, special, consequential, or punitive damages of any kind whatsoever, whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this Section 7 shall survive termination of this Agreement, and shall not be limited in any way by any appropriate proceedingslimitation on the amount or type of damages, which proceedings shall be prosecuted diligently compensation or benefits payable by or for the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedingsIndemnifying Party under any statutory scheme, including any compromise or settlement thereof. The Executive is hereby authorizedincluding, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of under any related counterclaim against the person asserting the Third Party Claim Worker's Compensation Acts, Disability Benefit Acts or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationother Employee Benefit Acts.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Energy Service Provider Service Agreement (Powersource Corp), Energy Service Provider Service Agreement (Powersource Corp), Energy Service Provider Service Agreement (Powersource Corp)
Indemnification. 8.1 If at any time 7.1 To the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full fullest extent permitted by law.
8.2 Expenses , and subject to the limitations set forth in Section 6 of this Agreement, each Party (including attorneys’ feesthe "Indemnifying Party') shall indemnify and hold harmless the other Party, and its current and future direct and indirect parent companies, affiliates and their shareholders, officers, directors, employees, agents, servants and assigns (collectively, the Indemnified Party") and at the Indemnified Party's option, the Indemnifying Party shall defend the Indemnified Party from and against any and all claims and/or liabilities for losses, expenses, damage to property, injury to or death of any person, including, but not limited to, the Indemnified Party's employees and its affiliates' employees, subcontractors and subcontractors' employees, or any other liability incurred by the Executive Indemnified Party, including reasonable expenses, legal and otherwise, which shall include reasonable attorneys' fees, caused wholly or in appearing atpart by any negligent, participating grossly negligent or willful act or omission by the Indemnifying Party, its officers, directors, employees, agents or assigns arising out of this Agreement, except to the extent caused wholly or in part by any negligent, grossly negligent or willful act or omission of the Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by and unless in the Company at reasonable intervals in advance opinion of counsel for the final disposition Indemnified Party a conflict of such action, suit or proceeding upon receipt of an undertaking by interest between the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served Parties may exist with respect to such claim (claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnified Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if any)a conflict precludes the Indemnifying Party from assuming the defense, and then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party's defense through separate counsel of his request for indemnification under this Agreement.
(b) Within 30 days after receipt the Indemnified Party's choice. Even if the Indemnifying Party assumes the defense of any Claim Notice (“Election Period”)the Indemnified Party with acceptable counsel, the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desiresIndemnified Party, at its sole cost and option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder. In no event shall either Party be liable to defend the Executive against such Third other Party Claim for any indirect, special, consequential, or punitive damages of any kind whatsoever, whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this Section 7 shall survive termination of this Agreement, and shall not be limited in any way by any appropriate proceedingslimitation on the amount or type of damages, which proceedings shall be prosecuted diligently compensation or benefits payable by or for the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedingsIndemnifying Party under any statutory scheme, including any compromise or settlement thereof. The Executive is hereby authorizedincluding, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of under any related counterclaim against the person asserting the Third Party Claim Workers Compensation Acts, Disability Benefit Acts or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationother Employee Benefit Acts.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Energy Service Provider Agreement (Powersource Corp), Energy Service Provider Agreement (Powersource Corp), Energy Service Provider Agreement (Powersource Corp)
Indemnification. 8.1 If at any time 7.1 To the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full fullest extent permitted by law.
8.2 Expenses , and subject to the limitations set forth in Section 6 of this Agreement each Party (including attorneys’ feesthe "Indemnifying Party") shall indemnify and hold harmless the other Party, and its current and future direct and indirect parent companies, affiliates and their shareholders, officers, directors, employees, agents, servants and assigns (collectively, the "Indemnified Party") and at the Indemnified Party's option, the Indemnifying Party shall defend the Indemnified Party from and against any and all claims and/or liabilities for losses, expenses, damage to property, injury to or death of any person, including, but not limited to, the Indemnified Party's employees and its affiliates' employees, subcontractors and subcontractors' employees, or any other liability incurred by the Executive Indemnified Party, including reasonable expenses, legal and otherwise, which shall include reasonable attorneys' fees, caused wholly or in appearing atpart by any negligent grossly negligent or willful act or omission by the Indemnifying Party, participating its officers, directors, employees, agents or assigns arising out of this Agreement, except to the extent caused wholly or in part by any negligent grossly negligent or willful act or omission of the Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by and unless in the Company at reasonable intervals in advance opinion of counsel for the final disposition Indemnified Party a conflict of such action, suit or proceeding upon receipt of an undertaking by interest between the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served Parties may exist with respect to such claim (claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnified Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if any)a conflict precludes the Indemnifying Party from assuming the defense, and then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party s defense through separate counsel of his request for indemnification under this Agreement.
(b) Within 30 days after receipt the Indemnified Party's choice. Even if the Indemnifying Party assumes the defense of any Claim Notice (“Election Period”)the Indemnified Party with acceptable counsel, the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desiresIndemnified Party, at its sole cost and option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder. In no event shall either Party be liable to defend the Executive against such Third other Party Claim for any indirect special, consequential, or punitive damages of any kind whatsoever, whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this Section 7 shall survive termination of this Agreement, and shall not be limited in any way by any appropriate proceedingslimitation on the amount or type of damages, which proceedings shall be prosecuted diligently compensation or benefits payable by or for the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedingsIndemnifying Party under any statutory scheme, including any compromise or settlement thereof. The Executive is hereby authorizedincluding, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of under any related counterclaim against the person asserting the Third Party Claim Worker s Compensation Acts, Disability Benefit Acts or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationother Employee Benefit Acts.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Energy Service Provider Service Agreement (Powersource Corp), Energy Service Provider Service Agreement (Powersource Corp), Energy Service Provider Service Agreement (Powersource Corp)
Indemnification. 8.1 The Company hereby agrees to indemnify, defend and hold harmless Consultant, its officers, directors, principals, employees, affiliates, and shareholders, and their successors and assigns from and against any and all claims, damages, losses, liability, deficiencies, actions, suits, proceedings, costs or legal expenses (collectively the "Losses") arising out of or resulting from: (i) any breach of a representation, or warranty by the Company contained in this Agreement; or (ii) any activities or services performed hereunder by Consultant, unless such Losses were the result of the intentional misconduct or gross misconduct of Consultant; or (iii) any and all costs and expenses (including reasonable attorneys' and paralegals' fees) related to the foregoing, and as more fully described below. If at Consultant receives written notice of the commencement of any time legal action, suit or proceeding with respect to which the Executive Company is or may be obligated to provide indemnification pursuant to this Section 5, Consultant shall, within thirty (30) days of the receipt of such written notice, give the Company written notice thereof (a party or is threatened "Claim Notice"). Failure to be made give such Claim Notice within such thirty (30) day period shall not constitute a party waiver by Consultant of its right to any threatened, pending or completed indemnity hereunder with respect to such action, suit or proceeding. Upon receipt by the Company of a Claim Notice from Consultant with respect to any claim for indemnification which is based upon a claim made by a third party ("Third Party Claim"), whether civil, criminal, administrative or investigative, by reason Consultant may assume the defense of the fact that he is or was a directorThird Party Claim with counsel of its own choosing, officer, employee or agent as described below. The Company shall cooperate in the defense of the CompanyThird Party Claim and shall furnish such records, or is or was serving information and testimony and attend all such conferences, discovery proceedings, hearings, trial and appeals as may be reasonably required in connection therewith. Consultant shall have the right to employ its own counsel in any such action, but the fees and expenses of such counsel shall be at the request expense of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, Consultant unless the Company shall indemnify not have promptly employed counsel to assume the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature defense of the Third Party Claim, a copy in which event such fees and expenses shall be borne solely by the Company. The Company shall not satisfy or settle any Third Party Claim for which indemnification has been sought and is available hereunder, without the prior written consent of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), Consultant. If the Company shall notify the Executive (i) whether the Company disputes its potential liability fail with reasonable promptness either to the Executive under this Section 8 with respect to defend such Third Party Claim and (ii) whether or to satisfy or settle the Company desiressame, at its sole cost and expenseConsultant may defend, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute satisfy or settle the Third Party Claim, then the Executive shall have the right to defend, Claim at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect pay to Consultant the amount of any such participation.
Loss within ten (d10) days after written demand therefor. The indemnification provided by provisions hereunder shall survive the termination of this Section 8 shall apply whether or not the negligence of a party is alleged or provedAgreement.
Appears in 3 contracts
Samples: Consulting Agreement (Ii Group Inc), Consulting Agreement (Ii Group Inc), Consulting Agreement (Daltex Medical Sciences Inc)
Indemnification. 8.1 If at (a) The Company shall (i) indemnify and hold harmless the Manager and any time Affiliate of the Executive is a party Manager and each of their respective directors, officers, employees and agents (each, an “Indemnified Party”) from and against all losses, claims, damages, expenses or is threatened liabilities to which such Indemnified Party may become subject (except in respect of the broker-dealer engaged by the Manager in respect of placement of Contracts, which shall be the sole liability of the Manager), insofar as such losses, claims, damages, expenses or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof) arise out of, in any way relate to, or result from the transactions contemplated by, this Agreement, and (ii) reimburse each of the Indemnified Parties upon its demand for any reasonable legal or other expenses incurred in connection with investigating, preparing to defend or defending any such loss, claim, damage, liability, action or claim, in each case only to the extent that funds are available therefor in accordance with the Security Agreement; provided, however, that none of the Indemnified Parties shall have the right to be made a party so indemnified hereunder for losses, claims, damages, expenses or liabilities to the extent resulting from its own negligence or willful misconduct or for losses, claims, damages, expenses or liabilities that it is required to pay to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of broker-dealer that it has engaged in connection with the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan Contracts or other enterpriseliabilities. If any action is brought against an Indemnified Party indemnified or intended to be indemnified pursuant to this Section 2.12, the Company shall indemnify the Executive shall, if requested by such Indemnified Party, resist and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with defend such action, suit or proceeding or cause the same to the full extent permitted be resisted and defended by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing atcounsel reasonably satisfactory to such Indemnified Party, participating in, but shall not be empowered to compromise or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of settle such action, suit or proceeding upon receipt unless such Indemnified Party has been fully indemnified for any loss, claim, damage, expense or liability it thereby suffers. Each Indemnified Party shall, unless the Indemnified Party has made the request described in the preceding sentence and such request has been complied with, have the right to employ its own counsel to investigate and control the defense of an undertaking any matter covered by such indemnity and the Executive to repay reasonable fees and expenses of such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement counsel shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion expense of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making Any obligations of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 2.12 are Deferred Expenses and the Company Manager shall bear his costs and expenses with respect have recourse solely to the LOC Reimbursement Account for such participation.
(c) If obligations of the Company fails (and not to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense any other assets of the Company, ) and shall be paid in the Third Party Claimpriority specified in the applicable sections of Article VII of the Security Agreement. The Executive shall have full control of Manager hereby expressly consents to such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice limited recourse to the Executive LOC Reimbursement Account and to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved priorities of distributions set forth in favor Article VII of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationSecurity Agreement.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Liability and Portfolio Management Agreement (Genworth Financial Inc), Liability and Portfolio Management Agreement (Genworth Financial Inc), Liability and Portfolio Management Agreement (Genworth Financial Inc)
Indemnification. 8.1 If at a. The Employer agrees to indemnify and hold harmless to Orpheus and its affiliates, agents, and their respective directors, officers, employees, agents and controlling persons (each such person is hereinafter referred to as an “Indemnified Party”), from and against any time the Executive is a party and all losses, claims, damages, liabilities and expenses whatsoever, joint or is threatened several, to be made a party which any such Indemnified Party may become subject under any applicable law of Malaysia or otherwise, caused by, relating to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason arising out of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable engagement evidenced hereby. The Employer will reimburse any Indemnified Party for any expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement reasonable counsel fees and other liabilities actually and reasonably expenses) as they are incurred by him an Indemnified Party in connection with such actionthe investigation of, suit preparation for or defense of any pending or threatened claim or any action or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceedingarising therefrom, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals not resulting in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsliability; provided, however, that at the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement time of such Third reimbursement the Indemnified Party Claimshall have entered into an agreement with the Employer whereby the Indemnified Party agrees to repay all such reimbursed amounts if it is determined in a final judgement by a court of competent jurisdiction that the Indemnified Party is not entitled to indemnity from Orpheus. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company Employer shall not be required liable to bear any Indemnified Party under the costs foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense results directly from any such Indemnified Party’s misconduct or gross negligence.
b. If for any reason (other than a final non-appealable judgement finding any Indemnified Party liable for losses, claims, damages, liabilities or expenses for its gross negligence or willful misconduct) the foregoing indemnity is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless, then the Employer shall contribute to the amount paid or payable by an Indemnified Party as a result of such loss, claim, damage, liability or expense in such proportion as is appropriate to reflect not only the relative benefits received by the Employer on the one hand and expenses of Orpheus on the Executive’s defense pursuant to this Section 8 or of other, but also the Company’s participation therein at relative fault by the Executive’s request, Employer and the Executive Indemnified Party, as well as any relevant equitable considerations, subject to the limitation that in no event shall reimburse the Company promptly in full for total contribution of all costs Indemnified Parties to all such losses, claims, damages, liabilities or expenses exceed the amount of fees actually received and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled retained by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationhereunder.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Service Level Agreement, Service Level Agreement, Service Level Agreement
Indemnification. 8.1 If at The Company agrees to indemnify, defend and hold harmless the Indemnified Parties from and against any time and all claims, damages, losses, liabilities, actions, suits, proceedings and expenses (including, without limitation, fees and disbursements of counsel), that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of this Agreement (including as a result of any breach or inaccuracy of any representation, warranty or covenant of the Executive Company herein), the other Transaction Documents, or the transactions contemplated hereby or thereby, any use made or proposed to be made by the Company with the proceeds of the Common Stock Equity Offering, or any claim, litigation, investigation, inquiry or proceeding relating to any of the foregoing, regardless of whether any Indemnified Party is a party or is threatened to be made a party to any threatenedthereto, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs reimburse each Indemnified Party upon demand for reasonable and documented fees and expenses of counsel (which, so long as there are no conflicts among such Indemnified Parties, shall be limited to one law firm serving as counsel for the Indemnified Parties) and other expenses incurred by it in connection with investigating, preparing to defend or defending, or providing evidence in or preparing to serve or serving as a witness with respect to, any lawsuit, investigation, claim or other proceeding relating to any of the foregoing, irrespective of whether the transactions contemplated hereby are consummated, except to the extent such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b)claim, damage, loss, liability, or if the Company elects expense is found in a Final Order to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute have resulted from such Indemnified Party’s bad faith, actual fraud, gross negligence, or settle the Third willful misconduct. No Indemnified Party Claim, then the Executive shall have the right any liability (whether direct or indirect, in contract, tort or otherwise) to defend, at the sole cost and expense of the Company, for or in connection with the Third Party Claim. The Executive shall have full control of such defense and proceedings; providedtransactions contemplated hereby, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice except to the Executive to the effect that the Company disputes its potential extent such liability to the Executive under this Section 8, and if such dispute is resolved found in favor of the Company by a final, nonappealable non-appealable order of a court of competent jurisdictionjurisdiction to have resulted from such Indemnified Party’s bad faith, actual fraud, gross negligence or willful misconduct. In no event, however, shall the Company or any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages. Without the prior written consent of the Indemnified Parties, the Company agrees that it will not enter into any settlement of any lawsuit, claim or other proceeding arising out of this Agreement, the other Transaction Documents, or the transactions contemplated hereby or thereby, unless such settlement (i) includes an explicit and unconditional release from the party bringing such lawsuit, claim or other proceeding of all Indemnified Parties and (ii) does not include a statement as to or an admission of fault, culpability, or a failure to act by or on behalf of any Indemnified Party. No Indemnified Party shall not be required liable for any damages arising from the use by unauthorized persons of any information made available to bear the costs and expenses Indemnified Parties by the Company or representatives through electronic, telecommunications or other information transmission systems that is intercepted by such persons. No Indemnified Party shall settle any lawsuit, claim, or other proceeding arising out of this Agreement, the other Transaction Documents, or the transactions contemplated hereby or thereby without the prior written consent of the ExecutiveCompany (such consent not to be unreasonably withheld or delayed). Notwithstanding the foregoing, an Indemnified Party shall be entitled to no indemnification by the Company for any claim, damage, loss, liability, or expense incurred by or asserted or awarded against such Indemnified Party for (x) any violation of Law by such Indemnified Party, or (y) to the extent that a claim, damage, loss, liability or expense is attributable to the Purchaser’s defense pursuant to this Section 8 or breach of any of the Company’s participation therein at the Executive’s requestrepresentations, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate inwarranties, but not control, any defense covenants or settlement controlled agreements made by the Executive pursuant to Purchaser in this Section 8.3(c), and Agreement or in the Company shall bear its own costs and expenses with respect to such participationother Transaction Documents.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 3 contracts
Samples: Common Stock Purchase Agreement (NextDecade Corp.), Common Stock Purchase Agreement (NextDecade Corp.), Common Stock Purchase Agreement (Ninteenth Investment Co LLC)
Indemnification. 8.1 If Tenant agrees to protect, defend, reimburse, indemnify and hold the County Parties free and harmless at all times from and against any time and all claims, liability, expenses, losses, costs, fines and damages (including attorney fees at trial and appellate levels) and causes of action of every kind and character (collectively referred to herein as “Damages”) against, or in which County is named or joined, arising out of this Lease or use or occupancy of the Executive is a party or is threatened Premises by any Tenant Party, including, but not limited to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, those arising by reason of any damage to property or the fact that he is or was a director, officer, employee or agent of the Companyenvironment, or is bodily injury (including death) incurred or was serving at the request sustained by any party hereto, or of the Company as a directorany party acquiring any interest hereunder, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan and any third or other enterpriseparty whomsoever, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees)or any governmental agency, judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him arising out of or incident to or in connection with such actiona Tenant Party’s acts, suit omissions or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating inoperations hereunder, or defending the performance, non-performance or purported performance of a Tenant Party or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance breach of the final disposition terms of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsLease; provided, however, that the Executive may not enter into, without the Company’s consent, which Tenant shall not be unreasonably withheld, any compromise responsible to a County Party for Damages that are solely attributable to the negligence or settlement willful misconduct of such Third Party ClaimCounty Party. Notwithstanding Tenant further agrees to hold harmless and indemnify the foregoingCounty Parties for any fines, if the Company has delivered citations, court judgments, insurance claims, restoration costs or other liability resulting from or in any way arising out of or due to a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor Tenant Party’s activities or operations or use of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply Premises whether or not Tenant was negligent or even knowledgeable of any events precipitating a claim or judgment arising as a result of any situation involving the negligence activities. This indemnification shall be extended to include all deliverers, suppliers, furnishers of a party is alleged material, or provedanyone acting for, on behalf of or at the request of Tenant. Tenant recognizes the broad nature of this indemnification and hold-harmless provision, and acknowledges that County would not enter into this Lease without the inclusion of such clause, and voluntarily makes this covenant and expressly acknowledges the receipt of Ten Dollars ($10.00) and such other good and valuable consideration provided by County in support of this indemnification in accordance with the laws of the State of Florida. The obligations arising under this Article shall survive the expiration or termination of this Lease.
Appears in 3 contracts
Samples: Development Site Lease Agreement, Development Site Lease Agreement, Hotel Development Site Lease Agreement
Indemnification. 8.1 If at any time the Executive is a party or is threatened 11.1 The Company (as “Indemnitor”) hereby agrees to be made a party to any threatenedindemnify, pending or completed actionpay and hold each Investor, suit or proceeding, whether civil, criminal, administrative or investigative, by reason and each of the fact that he is or was a directorrespective officers, officerdirectors, employee or agent employees and Affiliates of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseeach Investor (collectively, the Company shall indemnify the Executive “Indemnified Parties”) harmless from and hold him harmless against reasonable any and all other liabilities, costs, expenses liabilities, obligations, losses, damages (including attorneys’ feesconsequential or otherwise), penalties, actions, judgments, finessuits, penaltiesclaims and disbursements of any kind or nature whatsoever (but including only the reasonable fees and expenses of one counsel) which may be imposed on, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating inby, or defending asserted against such Indemnified Party, in any threatenedmanner relating to or arising out of (i) the failure of any of the representations and warranties set forth in this Agreement and the Ancillary Agreements, pending including Section 4 of this Agreement to be true and correct as of the date of this Agreement, (ii) the Company’s breach of agreements or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid covenants made by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and the Ancillary Agreements, or (iii) any action, suit, claim, proceeding or investigation by any Governmental Authority, stockholder of the Company or any other person (other than the Company) relating to this Agreement or the transactions contemplated hereby (other than any losses attributable to the acts, errors or omissions on the part of such Investor, but not including the transactions contemplated hereby) (collectively, the “Indemnified Liabilities”).
11.2 Each Indemnified Party shall give the Indemnitor prompt written notice of any claim that might give rise to Indemnified Liabilities setting forth a description of those elements of such claim of which such Indemnified Party has knowledge; provided, that any delay or failure to give such notice shall not affect the obligations of the Indemnitor unless (and then solely to the extent) such Indemnitor is materially prejudiced by such delay or failure. The Indemnitor shall have the right at any time during which such claim is pending to select counsel to defend and control the defense thereof and settle any claims for which they are responsible for indemnification hereunder (provided, that the Indemnitor will not settle any such claim without (i) the appropriate Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or (ii) shall transmit obtaining an unconditional release of the appropriate Indemnified Party from all claims arising out of or in any way relating to the Company circumstances involving such claim) so long as in any such event the Indemnitor shall have stated in a written notice (“Claim Notice”) describing in reasonable detail writing delivered to the nature of Indemnified Party that, as between the Third Indemnitor and the Indemnified Party, the Indemnitor is responsible to the Indemnified Party Claim, a copy of all papers served with respect to such claim (if any)to the extent and subject to the limitations set forth herein; provided, and that the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt Indemnitor shall not be entitled to control the defense of any Claim Notice (“Election Period”)claim in the event that in the reasonable opinion of counsel for the Indemnified Party there are one or more material defenses available to the Indemnified Party which are not available to the Indemnitor; provided further, that with respect to any claim as to which the Indemnified Party is controlling the defense, the Indemnitor will not be liable to any Indemnified Party for any settlement of any claim pursuant to this Section that is effected without its prior written consent. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Company shall notify contribute the Executive (i) whether the Company disputes its potential liability maximum portion which it is permitted to pay and satisfy under applicable law to the Executive under this Section 8 with respect to such Third Party Claim payment and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently satisfaction of all Indemnified Liabilities incurred by the Company to a final conclusion Indemnified Parties or settled at the discretion any of them.
11.3 The obligations of the Company set forth in accordance with this Subsection 8.3(b). The Company Section 11.1(i) shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those terminate as of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationInitial Closing Date.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Loan and Security Agreement (Image Entertainment Inc), Securities Purchase Agreement (Image Entertainment Inc)
Indemnification. 8.1 If at any time Indemnification in the Executive is a party or is threatened Event of Certain Losses. HOTEL agrees to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless THISCO and THISCO's affiliates and their directors, officers, employees and other stockholders, from and against reasonable any losses, claims, liabilities, damages or expenses (including attorneys’ reasonable attorney's fees) occurring on account of HOTEL's fault and through no fault of THISCO ("THISCO's Losses"). THISCO agrees to indemnify and hold harmless HOTEL, judgmentsand HOTEL's affiliates and their directors, finesofficers, penaltiesemployees and stockholders, amounts paid from and against any losses, claims, liabilities, damages or expenses (including reasonable attorney's fees) ("HOTEL's Losses") occurring on account of THISCO's fault and through no fault of HOTEL. Promptly after receipt by an indemnified party of notice of the commencement of any action or the presentation or other assertion of any claim which could result in settlement any indemnification claim pursuant to this Section 8.1, such indemnified party shall give prompt notice thereof to the indemnifying party and the indemnifying party shall be entitled to participate therein or, to the extent that it shall wish, assume the defense thereof with its own counsel. If the indemnifying party elects to assume the defense of any such action or claim, the indemnifying party shall not be liable to the indemnified party for any fees of other liabilities actually and reasonably counsel or other expenses, in each case sub sequently incurred by him such indemnified party in connection with such actionthe defense thereof, suit other than reasonable costs of investigation and preparation, unless representation of both parties by the same counsel would be inappropriate due to actual or proceeding potential differing interests between them. The parties agree to cooperate to the full fullest extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive possible in appearing at, participating in, connection with any claim for which indemnification is or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall may be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification sought under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: User Agreement (Pegasus Systems Inc), User Agreement (Pegasus Systems Inc)
Indemnification. 8.1 If From and at all times after the date of this Escrow Agreement, SEACOR and the Stockholders, jointly and severally, shall, to the fullest extent permitted by law and to the extent provided herein, indemnify and hold harmless the Escrow Agent and each director, officer, employee, attorney, agent and affiliate of the Escrow Agent (collectively, the "Indemnified Parties") against any time and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including without limitation reasonable attorneys' fees, costs and expenses) incurred by or asserted against any of the Executive Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action or proceeding (including any inquiry or investigation) by any person, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution, performance or failure of performance of this Escrow Agreement or any transactions contemplated herein, whether or not any such Indemnified Party is a party or is threatened to be made a party to any threatenedsuch action, pending or completed actionproceeding, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company target of any third-party claim such inquiry or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsinvestigation; provided, however, that no Indemnified Party shall have the Executive may not enter intoright to be indemnified hereunder for any liability finally determined, without subject to no further appeal, to have resulted solely from the Company’s consent, which shall not be unreasonably withheld, any compromise gross negligence or settlement willful misconduct of such Third Indemnified Party. If any such action or claim shall be brought or asserted against any Indemnified Party, such Indemnified Party Claimshall promptly notify SEACOR and the Stockholders in writing, and SEACOR and the Stockholders shall assume the defense thereof, including the employment of counsel and the payment of all expenses. Notwithstanding Such Indemnified Party shall, in its sole discretion, have the foregoingright to employ separate counsel in any such action and to participate in the defense thereof, if and the Company has delivered a written notice fees and expenses of such counsel shall be paid by such Indemnified Party unless (a) SEACOR and the Stockholders agree to pay such fees and expenses, or (b) SEACOR or the Stockholders shall fail to assume the defense of such action or proceeding or shall fail, in the reasonable discretion of such Indemnified Party, to employ counsel satisfactory to the Executive Indemnified Party in any such action or proceeding, or (c) the named parties to any such action or proceeding (including any impleaded parties) include both Indemnified Party and SEACOR or the Stockholders, and Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to SEACOR or the Stockholders. All such fees and expenses payable by SEACOR or the Stockholders pursuant to the effect that foregoing sentence shall be paid from time to time as incurred, both in advance of and after the Company disputes its potential liability to the Executive under this Section 8, and if final disposition of such dispute is resolved in favor action or claim. All of the Company by finalforegoing losses, nonappealable order of a court of competent jurisdictiondamages, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to Indemnified Parties shall be payable by SEACOR and the Stockholders, jointly and severally, upon demand by such Indemnified Party. The obligations of SEACOR and the Stockholders under this Section 8 6(b) shall survive any termination of this Escrow Agreement and the resignation or removal of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all Escrow Agent. The costs and expenses of such litigationenforcing this right of indemnification shall be paid by SEACOR and the Stockholders. The Company may participate in, but not control, parties agree that neither the payment by SEACOR or the Stockholders of any defense or settlement controlled claim by the Executive pursuant Escrow Agent for indemnification hereunder nor the disbursement of any amounts to this Section 8.3(c)the Escrow Agent from the Escrow Fund in respect of a claim by the Escrow Agent for indemnification shall impair, limit, modify, or affect, as between SEACOR and the Stockholders, the respective rights and obligations of the Stockholders, on the one hand, and SEACOR, on the Company shall bear its own costs and expenses with respect to such participationother hand, under the Indemnification Agreement.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Escrow Agreement (Colligan Madeline), Escrow Agreement (Colligan Madeline)
Indemnification. 8.1 If at The Company will indemnify and hold harmless Carlyle and its officers, employees, agents, representatives, members and affiliates (each being an "Indemnified Party") from and against any time and all losses, costs, expenses, claims, damages and liabilities (the Executive "Liabilities") to which such Indemnified Party may become subject under any applicable law, or any claim made by any third party, or otherwise, to the extent they relate to or arise out of the performance of the Services contemplated by this Agreement or the engagement of Carlyle pursuant to, and the performance by Carlyle of the Services contemplated by, this Agreement. The Company will reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys' fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party hereto, provided that, subject to the following sentence, the Company shall be entitled to assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment. Any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense, and in any action, claim or proceeding in which the Company, on the one hand, and an Indemnified Party, on the other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall have the right to employ separate counsel at the Company's expense and to control its own defense of such action, claim or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a conflict or potential conflict exists between the Company, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable. The Company agrees that it will not, without the prior written consent of the applicable Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been actually threatened to be made a party to any threatenedthereto) unless such settlement, pending compromise or completed actionconsent includes an unconditional release of the applicable Indemnified Party and each other Indemnified Party from all liability arising or that may arise out of such claim, suit action or proceeding. Provided that the Company is not in breach of its indemnification obligations hereunder, whether civil, criminal, administrative no Indemnified Party shall settle or investigative, by reason of compromise any claim subject to indemnification hereunder without the fact that he is or was a director, officer, employee or agent consent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at will not be liable under the Company’s sole cost and expense (but only if he is actually entitled to foregoing indemnification hereunder or if the Company assumes the defense with respect provision to the Third Party Claim)extent that any loss, claim, damage, liability, cost or expense is determined by a court, in a final judgment from which no further appeal may be taken, to filehave resulted solely from the gross negligence or willful misconduct of Carlyle. If an Indemnified Party is reimbursed hereunder for any expenses, during the Election Period, any motion, answer or other pleadings which he such reimbursement of expenses shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial be refunded to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim extent it is finally judicially determined that the Company elects to contest, including without limitation, through Liabilities in question resulted solely from the making gross negligence or willful misconduct of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationCarlyle.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Management Consulting Agreement (Dex Media West LLC), Management Consulting Agreement (Dex Media Inc)
Indemnification. 8.1 If at any time the Executive is a party or is threatened Each Seller agrees to be made a party to any threatenedreimburse, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him the Custodian and its directors, officers, agents and employees harmless against reasonable expenses (including attorneys’ fees)any and all liabilities, obligations, losses, damages, penalties, actions, judgments, finessuits, costs, or out-of-pocket expenses of any kind or nature whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, amounts paid in settlement and other liabilities actually and reasonably actions, judgments, suits, costs, or out-of-pocket expenses were imposed on, incurred by him or asserted against the Custodian because of the breach by the Custodian of its obligations hereunder including, without limitation, any breach of the representations and warranties contained herein, or caused by the negligence, bad faith or willful misconduct on the part of the Custodian or any of its directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of the Custodian or the termination or assignment of this Agreement. In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or any other document related to a Mortgage Asset that was in connection its possession pursuant to Section 3 within two (2) Business Days after written request therefor by the Financing Party or the related Seller in accordance with the terms and conditions of this Agreement; provided that (i) Custodian previously delivered to such Financing Party a Trust Receipt which did not list such document as an Exception as of the related date of delivery to the Custodian; (ii) such document is not outstanding pursuant to a Request for Release in the form attached hereto as Exhibit F; and (iii) such document was held by the Custodian on behalf of the related Seller or the Financing Party, as applicable (a “Failure to Deliver”), then the Custodian shall (a) with respect to any missing Mortgage Note, promptly and upon request deliver to the Financing Party or the related Seller, a Lost Note Affidavit in the form attached hereto as Exhibit J and (b) with respect to any missing document related to such Mortgage Asset, including but not limited to a missing Mortgage Note, indemnify the related Seller or the Financing Party in accordance with the succeeding paragraph of this Section 14. The Custodian agrees to indemnify and hold the Financing Party and the Sellers harmless against liabilities, obligations, losses, damages, actions, judgments, suits, costs, or out-of-pocket expenses, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them relating to or arising out of a Failure to Deliver or the Custodian’s negligence, bad faith or willful misconduct. Notwithstanding the foregoing, it is specifically understood and agreed that the Custodian shall not be obligated under the preceding sentence to any party to the extent that any such claim, liability, loss, action, suit or proceeding or other expense, fee or charge shall have been caused by reason of any negligent act, negligent failure to act, bad faith or willful misconduct on the full extent permitted part of such party or by law.
8.2 Expenses (including attorneys’ fees) incurred reason of such party’s breach of its obligations hereunder. The foregoing indemnification shall survive any termination or assignment of this Agreement. In no event shall the Custodian or its directors, officers, agents or employees be held liable for any special, indirect or consequential damages resulting from any action taken or omitted to be taken by the Executive it or any of them hereunder or in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance connection herewith even if advised of the final disposition possibility of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnifieddamages.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Custodial Agreement (Residential Capital, LLC), Custodial Agreement (Residential Capital, LLC)
Indemnification. 8.1 If at The Company will indemnify and hold harmless Conexant and its officers, employees, agents, representatives and affiliates (each being an "Indemnified Party") from and against any time and all losses, costs, expenses, claims, damages and liabilities, (the Executive "Liabilities"), to which such Indemnified Party may become subject under any applicable federal or state law, or any claim made by any third party, or otherwise, to the extent they relate to or arise out of the performance of the Oversight Services contemplated by this Agreement or the engagement of Conexant pursuant to, and the performance by Conexant of the Oversight Services contemplated by this Agreement. The Company will reimburse any Indemnified Party for all costs and expenses (including attorneys' fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party hereto, provided that, subject to the following sentence, the Company shall be entitled to assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment. Any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense, and in any action, claim or proceeding in which the Company on the one hand, and an Indemnified Party on the other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall have the right to employ separate counsel at the Company's expense and to control its own defense of such action, claim or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a conflict exists between the Company on the one hand, and such Indemnified Party on the other hand, that would make such separate representation advisable. The Company agrees that it will not, without the prior written consent of the applicable Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been actually threatened to be made a party to any threatenedthereto) unless such settlement, pending compromise or completed actionconsent includes an unconditional release of the applicable Indemnified Party and each other Indemnified Party from all liability arising or that may arise out of such claim, suit action or proceeding. Provided that the Company is not in breach of its indemnification obligations hereunder, whether civil, criminal, administrative no Indemnified Party shall settle or investigative, by reason of compromise any claim subject to indemnification hereunder without the fact that he is or was a director, officer, employee or agent consent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability, cost or expense is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted solely from the gross negligence or willful misconduct of Conexant or any Indemnified Party. If an Indemnified Party is reimbursed hereunder for any expenses, such reimbursement of expenses shall have full control be refunded to the extent it is finally judicially determined that the Liabilities in question resulted solely from the gross negligence or willful misconduct of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationIndemnified Party.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Management Agreement (Jazz Semiconductor Inc), Management Agreement (Jazz Semiconductor Inc)
Indemnification. 8.1 If at The Borrower hereby agrees to (i) protect and indemnify the Indemnified Parties from, and hold each of them harmless, from and against all damages, losses, claims, actions, liabilities (or actions, investigations or other proceedings commenced or threatened in respect thereof) penalties, fines, costs and expenses including reasonable attorneys’ fees and expenses (collectively and severally, “Losses”) which may be imposed upon, asserted against or incurred or paid by any time of them resulting from the Executive is a claims of any third party relating to or is threatened arising out of (A) the Projects, (B) any of the Loan Documents or the Transactions, (C) any ERISA Events, (D) any Environmental Losses and (E) any act performed or permitted to be made performed by any Indemnified Party under any of the Loan Documents, except for Losses to the extent determined by a court of competent jurisdiction to be caused by the gross negligence, bad faith or willful misconduct of an Indemnified Party (but the effect of this exception only eliminates the liability of the Borrower with respect to such Indemnified Party (and if such Indemnified Party is not a Lender, the Lender on whose behalf such Indemnified Party was acting) to the extent such Indemnified Party has been adjudged to have so acted and not with respect to any other Indemnified Party), and (ii) reimburse each Indemnified Party on demand for any expenses (including the reasonable attorneys’ fees and disbursements) reasonably incurred in connection with the investigation of, preparation for or defense of any actual or threatened claim, action or proceeding arising therefrom (excluding any action or proceeding where such Indemnified Party is not a party to such action or proceeding out of which any threatened, pending such expenses arise unless such Indemnified Party is required to participate or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him respond in connection with such action, suit action or proceeding (e.g., by way of deposition, discovery requests, testimony, subpoena or similar reason)). The Obligations shall not be considered to the have been paid in full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance unless all obligations of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive Borrower under this Section 8 with respect 14.04 shall have been fully performed (except for contingent indemnification obligations for which no claim has actually been made pursuant to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings this Agreement). This Section 14.04 shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion survive repayment in full of the Company Obligations and, as to any Project, the release of that Project as collateral for the Loans in accordance with Section 2.09 of this Subsection 8.3(b). The Company Agreement, and in addition, shall have full control of such defense and proceedingssurvive the assignment, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer sale or other pleadings which he shall deem necessary or appropriate to protect his interests or those transfer of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the CompanyAdministrative Agent’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationLender’s interest hereunder.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc)
Indemnification. 8.1 If at any time Each party (the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall "Indemnifying Party") will indemnify the Executive and hold him the other parties and their directors, officers, shareholders, partners, employees and agents (each, an "Indemnified Party") harmless against reasonable expenses (from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including attorneys’ fees), all judgments, fines, penalties, amounts paid in settlement settlements, court costs and other liabilities actually reasonable attorneys' fees and reasonably incurred by him in connection with costs of investigation that any such actionIndemnified Party may suffer or incur as a result of or relating to any breach of any of the representations, suit warranties, covenants or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred agreements made by the Executive Indemnifying Party in appearing at, participating in, or defending this Agreement. If any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, action shall be paid by the Company at reasonable intervals brought against any Indemnified Party in advance respect of the final disposition of which indemnity may be sought pursuant to this Agreement, such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) Indemnified Party shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Indemnifying Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any)writing, and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Indemnifying Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defendassume the defense thereof with counsel of its own choosing. Any Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the sole cost and expense of such Indemnified Party except to the Companyextent that (i) the employment thereof has been specifically authorized by the Indemnifying Party in writing, (ii) the Third Indemnifying Party Claim. The Executive shall have full control has failed after a reasonable period of time to assume such defense and proceedings; providedto employ counsel or (iii) in such action there is, howeverin the reasonable opinion of such separate counsel, that a material conflict on any material issue between the Executive may position of the Indemnifying Party and the position of such Indemnified Party. The Indemnifying Party will not enter into, be liable to any Indemnified Party under this Agreement (i) for any settlement by an Indemnified Party effected without the Company’s Indemnifying Party's prior written consent, which shall not be unreasonably withheld, any compromise withheld or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice delayed; or (ii) to the Executive extent, but only to the effect extent that the Company disputes its potential a loss, claim, damage or liability is attributable to the Executive under this Section 8, and if such dispute is resolved in favor any Indemnified Party's breach of any of the Company by finalrepresentations, nonappealable order of a court of competent jurisdictionwarranties, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 covenants or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled agreements made by the Executive pursuant to Purchasers in this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationAgreement.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Subscription Agreement (Nanobac Pharmaceuticals Inc), Subscription Agreement (Adzone Research Inc)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive Licensee shall indemnify, defend, and hold harmless the Licensor from and against: (i) shall promptly notify all losses, liabilities, actions, claims, costs, damages, and expenses including without limitation attorneys' fees and court costs that arise out of or are in any way based upon the Company use or exploitation of any third-party of the Trademarks including, without limitation, all losses, liabilities, actions, claims, costs, damages and expenses relating to any claim for product liability or claims asserted against him (“Third Party Claim”) that could give rise otherwise arising in any way related to a right of indemnification under this Agreement and (ii) shall transmit any claims of any nature related to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature operation, maintenance, management, or physical attributes of the Third Party ClaimHotel, a copy including without limitation its compliance with the Americans with Disabilities Act, as amended (the "ADA") or any state or local law that is similar to the ADA or is otherwise related to the rights of all papers served with respect disadvantaged or disabled persons to such claim (if any), and the basis of his request for indemnification under this Agreementpublic accommodations.
(b) Within 30 days after receipt of Licensor shall indemnify, defend, and hold harmless Licensee from against all actions, claims, costs, demands and expenses that arise from any Claim Notice (“Election Period”), claim that the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion use of the Company in Trademarks by Licensee accordance with this Subsection 8.3(b). The Company shall have full control Agreement constitutes an infringement of such defense and proceedings, including the rights of any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense third party with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationTrademarks.
(c) If Any legal proceedings that are instituted by any third party against Licensor or Licensee related to this Agreement shall be defended at Licensee's expense except for claims that specifically refer to a claim of infringement of the Company fails rights of any third party with respect to notify the Executive within Trademarks, which shall be defended at Licensor's expense. The party obligated to pay the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(bexpenses of defense under this subsection (c) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defendselect counsel to provide such defense, at subject to the sole cost and expense approval of the Company, other party of the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consentcounsel selected, which approval shall not be unreasonably withheld, . No claim for which one party has any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive indemnity obligation under this Section 812 shall be settled or compromised, and if such dispute is resolved in favor or the defense thereof terminated, without the prior approval of the Company by final, nonappealable order of a court of competent jurisdiction, indemnifying party. The party entitled to indemnification under this Section 12 shall have the Company shall not be required right to bear affirmative injunctive relief to compel the costs and expenses provision of the Executive’s defense pursuant required in this subsection (c) and the right to this Section 8 or of the Company’s participation therein pursue such defense at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of indemnifying party's expense until such litigation. The Company may participate in, but not control, any defense or settlement controlled is fully undertaken by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationindemnifying party.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Sublicense Agreement (Aircoa Hotel Partners L P), Sublicense Agreement (Aircoa Hotel Partners L P)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact This Agreement will confirm that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseagrees to indemnify and hold harmless CTA and its affiliates, the Company shall indemnify respective members, directors, officers and employees of CTA and its affiliates (as defined in the Executive Securities Exchange Act of 1934, as amended) and hold him harmless each person, if any, controlling CTA or any of its affiliates (CTA and each such person and entity being referred to as an "Indemnified Person"), to the fullest extent legally permissible from and against reasonable any and all losses, claims, damages or liabilities or actions related to or arising out of this engagement or the role of CTA in connection herewith, and will pay (or, if paid by an Indemnified Person, reimburse such Indemnified Person) for all fees and expenses (including including, without limitation, reasonable attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ ' fees) incurred by the Executive such Indemnified Person in appearing atconnection with investigating, participating in, preparing or defending any threatenedsuch action or claim, whether or not in connection with pending or completed actionthreatened litigation in which any Indemnified Person is a party. The Company will not, suit however, be responsible for any claims, liabilities, losses, damages or expenses which result from any compromise or settlement not approved by the Company or which result primarily from the fraud, willful misconduct or gross negligence of any Indemnified Person. The Company also agrees that no Indemnified Person shall have any liability to the Company for or in connection with this engagement, except for any such liability for losses, claims, damages, liabilities or expenses incurred by the Company that results from the fraud, willful misconduct or gross negligence of the Indemnified Person. The foregoing agreement shall be in addition to any rights that either party may have at common law or otherwise, including, without limitation, any right to contribution. If any action or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against the Company pursuant hereto, or if any Indemnified Person receives notice from any potential litigant or a claimant which such person reasonable believes will result in the commencement of any such action or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) Indemnified Person shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature writing of the Third Party Claimcommencement of such action or proceeding, a copy or of all papers served with respect to the existence of such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of claim. In case any Claim Notice (“Election Period”)such action or proceeding shall be brought against any Indemnified Person, the Company shall notify be entitled to participate in such action or proceeding with counsel of the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to Company's choice, or compromise or settle such Third Party Claim and (ii) whether the Company desiresaction or proceeding, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim)in which case, to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs not thereafter be responsible for the fees and expenses with respect to of any separate counsel retained by such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(bIndemnified Person), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that such counsel shall be satisfactory to the Executive may not enter into, without Indemnified Person in the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement exercise of such Third Party Claimits reasonable judgment. Notwithstanding the foregoing, if Company's election to assume the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may action or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in, but not control, any in the defense of such action or settlement controlled by the Executive pursuant to this Section 8.3(c)proceeding, and the Company shall bear its own the reasonable fees, costs and expenses of such separate counsel (and shall pay such fees, costs and expenses, at least quarterly), if (i) the use of counsel chosen by the Company to represent such Indemnified Person would, in the written opinion of counsel to the Indemnified Person, present such counsel with respect a conflict of interest, (ii) the defendants in, or targets of, any such action or proceeding include both Indemnified Person(s) and the Company, and such Indemnified Person(s) shall have reasonably concluded that there may be legal defenses available to it or to other Indemnified Persons which are different from or additional to those available to the Company (in which case, the Company shall not have the right to direct the defense of such participationaction or proceeding on behalf of the Indemnified Person), (iii) the Company shall not have employed counsel within twenty (20) business days after notice of the institution of such action or proceeding (or such shorter period if necessitated by the action); or (iv) the Company shall authorize such Indemnified Person to employ separate counsel at the Company expense; provided, however, that all such Indemnified Persons shall be limited to, and the Company's obligation hereunder to bear reasonable fees and expenses of separate counsel shall be satisfied by, the employment of one counsel for such action for all Indemnified Persons. In order to provide for just and equitable contribution, if a claim of indemnification hereunder is found unenforceable in a final judgment by a court of competent jurisdiction (not subject to further appeal), even though the express provisions hereof provide for indemnification in such case, then the Company and CTA shall contribute to the losses, claims, damages, judgments, liability or costs to which the Indemnified Person may be subject in accordance with the relative benefits received by, and the relative fault of, each in connection with the statements, acts or omissions which resulted in such losses, claims, damages, judgments, liabilities or costs. The parties agree that a pro rata allocation would be unfair. No person found liable for a fraudulent misrepresentation or omission shall be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation or omission. Notwithstanding the foregoing, CTA shall not be obligated to contribute to any amount hereunder that exceeds the amount of fees previously received by CTA for its services to the Company under this Agreement. These indemnification provisions shall (i) remain operative and in full force and effect regardless of (A) any termination of this Agreement other than for fraud, willful misconduct or gross negligence, or (B) completion of the engagement by CTA; (ii) inure to the benefit of any successors, assigns, heirs or personal representatives of any Indemnified Person; and (iii) be in addition to any other rights that any Indemnified Person may have.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Consulting Agreement (Gre Consulting Inc), Consulting Agreement (Globix Corp)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a Each party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall this Agreement ("INDEMNIFYING PARTY") will indemnify the Executive and hold him the other parties and their directors, officers, shareholders, partners, employees and agents (each, an "INDEMNIFIED PARTY") harmless against reasonable expenses (from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including attorneys’ fees), all judgments, fines, penalties, amounts paid in settlement settlements, court costs and other liabilities actually reasonable attorneys' fees and reasonably incurred by him in connection with costs of investigation that any such action, suit Indemnified Party may suffer or proceeding incur as a result of or relating to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive any misrepresentation, breach or inaccuracy, of any of the representations, warranties, covenants or agreements made by the Indemnifying Party in this Agreement or in the other Transaction Documents or (ib) for the benefit of each Indemnified Parties relating to the Purchaser only, any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such Indemnified Party shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Indemnifying Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any)writing, and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Indemnifying Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defendassume the defense thereof with counsel of its own choosing. Any Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the sole cost and expense of such Indemnified Party except to the Companyextent that the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Third Indemnifying Party Claim. The Executive shall have full control has failed after a reasonable period of time to assume such defense and proceedings; providedto employ counsel or in such action there is, howeverin the reasonable opinion of such separate counsel, that a material conflict on any material issue between the Executive may position of the Indemnifying Party and the position of such Indemnified Party. The Indemnifying Party will not enter into, be liable to any Indemnified Party under this Section 4.11 for any settlement by an Indemnified Party effected without the Company’s Indemnifying Party's prior written consent, which shall not be unreasonably withheld, any compromise withheld or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice delayed; or to the Executive extent, but only to the effect extent that a loss, claim, damage or liability is attributable to any Indemnified Party's breach of any of the Company disputes its potential representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. In no event shall the liability to of any Purchaser be greater in amount than the Executive under this Section 8, dollar amount of the net proceeds received by such Purchaser upon the sale of the Underlying Shares and if such dispute is resolved in favor no event shall the liability of the Company be greater in amount than the dollar amount of the net proceeds received by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear from the costs and expenses Sale of the Executive’s defense pursuant Debenture and Warrant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationPurchasers.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Composite Technology Corp), Securities Purchase Agreement (Composite Technology Corp)
Indemnification. 8.1 If at The Company agrees to indemnify and hold Indemnitee harmless to the fullest extent permitted under the WBCL and the By-laws as in effect on the date hereof and as either may be amended to provide more advantageous rights to Indemnitee. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) The Company shall indemnify and hold harmless Indemnitee to the extent that he or she has been successful on the merits or otherwise in the defense of a Proceeding (including, but not limited to, termination of any time Proceeding by dismissal, with or without prejudice) for all Expenses incurred in the Executive Proceeding (i) if Indemnitee was a Party to the Proceeding because he or she is a party Director or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason Officer of the fact that he is Company or was (ii) if the Proceeding arises out of any action taken by, or alleged to have been taken by, or inaction, or alleged inaction, on the part of, Indemnitee in his or her capacity as a director, officer, employee Director or agent Officer of the Company. If Indemnitee is successful on the merits or otherwise as to one or more but less than all claims, issues or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprisematters in any Proceeding, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably Indemnitee for all Expenses incurred by him Indemnitee or on his or her behalf in connection with such actioneach successfully resolved claim, suit issue or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing atmatter and any claim, participating in, issue or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect matter related to such claim (if any)successfully resolved claim, and the basis of his request for indemnification under this Agreementissue or matter.
(b) Within 30 days after receipt of any Claim Notice In cases not included in Clause (“Election Period”a), above, the Company shall notify the Executive indemnify and hold harmless Indemnitee for all Liabilities and Expenses incurred in a Proceeding (i) whether if Indemnitee was a Party to the Proceeding because he or she is a Director or Officer of the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and or (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes Proceeding arises out any action taken by, or alleged to have been taken by, or inaction, or alleged inaction, on the defense with respect to the Third Party Claim)part of, to file, during the Election Period, any motion, answer Indemnitee in his or other pleadings which he shall deem necessary her capacity as a Director or appropriate to protect his interests or those Officer of the Company and not prejudicial to the Company. If requested by the Company, unless and only to the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim extent that the Company elects to contest, including without limitation, through the making Liabilities and Expenses were incurred because of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement a Breach of any Third Party Claim controlled Duty by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationIndemnitee.
(c) If Notwithstanding any other provision in this Agreement, to the Company fails to notify the Executive within the Election Period extent that the Company elects to defend the Executive pursuant to Subsection 8.3(b)Indemnitee is, because he or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute she is a Director or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense Officer of the Company, the Third Party Claim. The Executive a witness in any Proceeding to which he or she is not a Party, Indemnitee shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise indemnified against all Expenses incurred by him or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved her or on his or her behalf in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationconnection therewith.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Indemnification Agreement (Renaissance Learning Inc), Indemnification Agreement (Manpower Inc /Wi/)
Indemnification. 8.1 If at The Company will indemnify and hold harmless Carlyle and its officers, employees, agents, representatives and affiliates (each being an "Indemnified Party") from and against any time and all losses, claims, damages and liabilities, (the Executive "Liabilities"), to which such Indemnified Party may become subject under any applicable federal or state law, or any claim made by any third party, or otherwise, to the extent they relate to or arise out of the performance of the Services contemplated by this Agreement or the engagement of Carlyle pursuant to, and the performance by Carlyle of the Services contemplated by, this Agreement. The Company will reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys' fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party hereto, provided that, subject to the following sentence, the Company shall be entitled to assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment. Any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense, and in any action, claim or proceeding in which the Company on the one hand, and an Indemnified Party on the other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall have the right to employ separate counsel at the Company's expense and to control its own defense of such action, claim or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a conflict exists between the Company on the one hand, and such Indemnified Party on the other hand, that would make such separate representation advisable. The Company agrees that it will not, without the prior written consent of the applicable Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been actually threatened to be made a party to any threatenedthereto) unless such settlement, pending compromise or completed actionconsent includes an unconditional release of the applicable Indemnified Party and each other Indemnified Party from all liability arising or that may arise out of such claim, suit action or proceeding. Provided that the Company is not in breach of its indemnification obligations hereunder, whether civil, criminal, administrative no Indemnified Party shall settle or investigative, by reason of compromise any claim subject to indemnification hereunder without the fact that he is or was a director, officer, employee or agent consent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at will not be liable under the Company’s sole cost and expense (but only if he is actually entitled to foregoing indemnification hereunder or if the Company assumes the defense with respect provision to the Third Party Claim)extent that any loss, claim, damage, liability, cost or expense is determined by a court, in a final judgment from which no further appeal may be taken, to filehave resulted solely from the gross negligence or willful misconduct of Carlyle or any Indemnified Party. If an Indemnified Party is reimbursed hereunder for any expenses, during the Election Period, any motion, answer or other pleadings which he such reimbursement of expenses shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial be refunded to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim extent it is finally judicially determined that the Company elects to contest, including without limitation, through Liabilities in question resulted solely from the making gross negligence or willful misconduct of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationCarlyle.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Carlyle Management Agreement (Jazz Semiconductor Inc), Management Agreement (Jazz Semiconductor Inc)
Indemnification. 8.1 If at (a) Company hereby agrees to defend, indemnify and hold Vendor harmless from and against any time the Executive is a party and all claims, damages, liabilities, costs, losses and expenses of any kind or is threatened to be made a party to nature whatsoever (including any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan legal or other enterpriseexpenses incurred in connection with investigating any claim, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, any amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with or compromise) (collectively, “Losses”) to which Vendor may become subject, insofar as such action, suit Losses arise out of or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding are based upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify Company’s unauthorized use of the Company of any third-party claim Vendor Trademarks or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and Vendor Confidential Information, (ii) any claim by Subscribers for Losses directly caused by Company or the TD AMERITRADE System or the API, or (iii) any claim that the TD AMERITRADE System, Company Intellectual Property or Company Trademarks infringe any U.S. patents, copyrights, trade secrets, licenses or other property rights of any third party, provided that: (A) Vendor promptly notifies Company in writing of any such action and gives Company sole authority and all information and assistance (at Company’s expense) reasonably requested by Company to defend or settle such claim, provided that failure to give prompt notice shall transmit not relieve Company of its indemnification obligations unless Company is materially prejudiced thereby, (B) in the case of (iii) above, such claim does not arise out of any unauthorized use of or modification to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any)TD AMERITRADE System by Vendor, and the basis of his request for indemnification under this Agreement.
(bC) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses (other than judgments or settlements negotiated by Company) were incurred by Vendor with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consentwritten authorization, which shall not be unreasonably withheldwithheld or delayed.
(b) Vendor hereby agrees to defend, indemnify and hold Company and its affiliates harmless from and against any compromise and all Losses to which Company may become subject, insofar as such Losses arise out of or settlement are based upon (i) any breach or violation by Vendor of such Third Party Claim. Notwithstanding the foregoing, if terms of any of the Company has delivered a written notice licenses granted to the Executive to the effect that the Company disputes its potential liability to the Executive Vendor under this Section 8, Agreement; (ii) any breach or violation by Vendor of any applicable laws and if such dispute is resolved in favor regulations; (iii) any unauthorized use of the Company by final, nonappealable order of a court of competent jurisdictionTrademarks, the Company’s Confidential Information, or Customer Information (iv) any claim by Subscribers for Losses directly caused by Vendor, the Vendor System or the Vendor Interface; or (v) any claim that the Vendor System, Vendor Intellectual Property or Vendor Trademarks infringe any patents, copyrights, trade secrets, licenses or other property rights of any third party, provided that: (A) Company promptly notifies Vendor in writing of any such action and gives Vendor sole authority and all information and assistance, provided that failure to give prompt notice shall not relieve Company of its indemnification obligations unless Company is materially prejudiced thereby, (at Vendor’s expense) reasonably requested by Vendor to defend or settle such claim, (B) in the case of (v) above, such claim does not arise out of any unauthorized use of or modification to the Vendor System by Company, and (C) any such costs and expenses (other than judgments or settlements negotiated by Vendor) were incurred by Company with Vendor’s written authorization, which shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 unreasonably withheld or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationdelayed.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Api Usage Agreement (Media Sentiment Inc.), Api Usage Agreement (Media Sentiment Inc.)
Indemnification. 8.1 If at The Company agrees to indemnify and hold harmless Purchaser, its Affiliates, and each Person, if any, who controls Purchaser, or any time of its Affiliates, within the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason meaning of the fact that he is Securities Act or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses Exchange Act (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claimeach, a copy of all papers served with respect to such claim (if any"Controlling Person"), and the basis respective partners, agents, employees, officers and Directors of his request for indemnification under this Agreement.
Purchaser, their Affiliates and any such Controlling Person (beach an "Indemnified Party") Within 30 days after receipt of any Claim Notice (“Election Period”and collectively, the "Indemnified Parties"), from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation and as incurred, reasonable costs of investigating, preparing or defending any such claim or action, whether or not such Indemnified Party is a party thereto, provided that the Company shall notify the Executive (i) whether not be obligated to advance such costs to any Indemnified Party other than Purchaser unless it has received from such Indemnified Party an undertaking to repay to the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim costs so advanced if it should be determined by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order judgment of a court of competent jurisdiction, the Company shall jurisdiction that such Indemnified Party was not be required entitled to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses indemnification hereunder with respect to such participation.
(dcosts) The indemnification provided which may be incurred by this Section 8 shall apply whether such Indemnified Party in connection with any investigative, administrative or judicial proceeding brought or threatened that relates to or arises out of, or is in connection with any activities contemplated by any Transaction Agreement or any other services rendered in connection herewith; PROVIDED that the Company will not the negligence be responsible for any claims, liabilities, losses, damages or expenses that are determined by final judgment of a party is alleged court of competent jurisdiction to result from such Indemnified Party's gross negligence, willful misconduct or provedbad faith.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Eagle Wireless International Inc), Securities Purchase Agreement (Eagle Wireless International Inc)
Indemnification. 8.1 If Both Corporations shall, and from and after the Closing Date, indemnify, defend and hold harmless each person who is now, or has been at any time prior to the Executive is a party date hereof or is who becomes prior to the Closing Date, an officer or director of either Corporation (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including reasonable attorneys’ fees and expenses), liabilities or judgments or amounts that are paid in settlement with the approval of the indemnifying Corporation of or in connection with any threatened to be made a party to any threatenedor actual claim, pending or completed action, suit suit, proceeding or proceeding, whether civil, criminal, administrative investigation based on or investigative, by reason arising out of the fact that he such person is or was a director, officer, employee director or agent officer of either Corporation whether pertaining to any matter existing or occurring at or prior to the CompanyClosing Date and whether asserted or claimed prior to, or is at or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseafter, the Company shall indemnify the Executive and hold him harmless against reasonable expenses Closing Date (including attorneys’ fees“Indemnified Liabilities”), judgmentsincluding all Indemnified Liabilities based on, finesor arising out of, penaltiesor pertaining to this Agreement or the transactions contemplated hereby, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such actioneach case, suit or proceeding to the full extent each Corporation is permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by under the Executive laws of its respective state of incorporation to indemnify directors or officers. Without limiting the foregoing, in appearing atthe event any such claim, participating in, or defending any threatened, pending or completed action, suit suit, proceeding or proceedinginvestigation is brought against any Indemnified Parties (whether arising before or after the Closing Date), whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) the Indemnified Parties may retain counsel satisfactory to them and the Corporations shall pay all fees and expenses of such counsel for the Indemnified Parties promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement as statements therefore are received; and (ii) each party shall transmit use all reasonable efforts to assist in the vigorous defense of any such matter, provided that each party shall not be liable for any settlement effected without its prior written consent. Any Indemnified Party wishing to claim indemnification under this section, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Parties (but the failure so to notify shall not relieve a party from any liability which it may have under this section except to the Company extent such failure prejudices such party). The Indemnified Parties as a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served group may retain only one law firm to represent them with respect to each such claim (if any)matter unless there is, and under applicable standards of professional conduct, a conflict on any significant issue between the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt positions of any Claim Notice (“Election Period”)two or more Indemnified Parties. The Parties agree that all rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, existing in favor of the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 Indemnified Parties with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, matters occurring through the making Closing Date, shall survive the reverse acquisition and shall continue in full force and effect for a period of any related counterclaim against not less than seven years from the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsClosing Date; provided, however, that all rights to indemnification in respect of any Indemnified Liabilities asserted or made within such period shall continue until the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement disposition of such Third Party ClaimIndemnified Liabilities. Notwithstanding The provisions of this section are intended to be for the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8benefit of, and if such dispute is resolved in favor shall be enforceable by, each Indemnified Party, his or her heirs and his or her personal representatives and shall be binding upon all successors and assigns of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationParties.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Plan of Reorganization and Acquisition (Saltys Warehouse, Inc.), Plan of Reorganization and Acquisition (Nucotec Inc)
Indemnification. 8.1 If at any time (a) The Trust shall indemnify and hold harmless the Executive is a party or is threatened to be made a party to any threatenedTrustee and its agents, pending or completed actionemployees, suit or proceedingofficers, whether civildirectors, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company Professionals and principals in their capacity as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprisesuch (collectively, the Company shall indemnify the Executive “Indemnified Parties”) from and hold him harmless against reasonable any and all losses, claims, damages, liabilities or expenses (including attorneys’ fees)including, judgments, fines, penaltieswithout limitation, amounts paid in settlement judgment, penalty or otherwise, fees and expenses of counsel and other liabilities actually and reasonably incurred by him in connection with such actionprofessionals (other than any costs of internal personnel), suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim claims on whatsoever theory (if anywhether by way of third- or subsequent party complaint, cross-claim, separate action or otherwise) by any Person to recover in whole or in part any liability, direct or indirect, whether by way of judgment, penalty or otherwise, of any Person in connection with, arising out of or which is in any way related to the distribution of the FX Luxury Stock or the matters set forth in this Agreement except, with respect to any Indemnified Party, for its own gross negligence or willful misconduct (the foregoing losses, claims, damages, liabilities and expenses, collectively, “Indemnification Costs”), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days Promptly after receipt by an Indemnified Party of notice of the commencement of any Claim Notice (“Election Period”)action referred to in Section 5.02(a) of this Agreement, such Indemnified Party shall give written notice to the Trustee thereof, but the omission so to notify the Trustee will not relieve the Trust from any liability that it may have to any Indemnified Party, except to the extent the Trust is actually prejudiced thereby. The Trust shall have no liability for any cost or expense incurred by such Indemnified Party prior to the notification to the Trustee of such action. In case any such action is brought against an Indemnified Party, and it notifies the Trustee of the commencement thereof, the Company shall notify Trustee on behalf of the Executive (i) whether the Company disputes its potential liability Trust will be entitled to participate in, and to the Executive under this Section 8 extent that it may wish, to assume, the defense thereof, with respect counsel reasonably satisfactory to the Indemnified Party, and after notice from the Trustee to such Third Indemnified Party, the Trust shall not, except as hereinafter provided, be responsible for any legal or other expenses subsequently incurred by the Indemnified Party Claim and (ii) whether in connection with the Company desiresdefense thereof. In the event the Trustee assumes the defense of the action, the Indemnified Party may retain separate counsel at its sole cost and expense, to defend expense (except that the Executive against such Third Party Claim by any appropriate proceedings, which proceedings Trustee shall be prosecuted diligently responsible for the fees and expenses of such separate co-counsel to the extent the Indemnified Party is advised, in writing by its counsel, that the Company to counsel the Trustee has selected has a final conclusion or settled at the discretion conflict of interest). Such assumption of the Company in accordance with this Subsection 8.3(b). The Company defense shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at not prejudice the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those right of the Company and Trust to claim at a later date that such third party action is not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company a proper matter for indemnification pursuant to this Section 8.3 5.02. The Trust shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if settled with its written consent, or if there be a final judgment for the plaintiff in any such action or proceeding, the Trust agrees to indemnify and the Company shall bear his costs hold harmless such Indemnified Party from and expenses with respect to against any loss or liability by reason of such participationsettlement or judgment.
(c) If To the Company fails extent the Trustee on behalf of the Trust has not assumed the defense of any action referred to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(bin Section 5.02(a), or if the Company elects Indemnified Parties shall be entitled to defend obtain advances (“Indemnification Advances”) from the Executive pursuant Trust to Subsection 8.3(b) but fails cover their expenses of defending themselves in any action referred to diligently and promptly prosecute or settle the Third Party Claimin Section 5.02(a), then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without Indemnified Parties receiving such advances shall repay the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice amounts so advanced to the Executive to Trust within 5 days after the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor entry of the Company by final, nonappealable a final order of a any court of competent jurisdiction, jurisdiction finding that such Indemnified Parties were not entitled to any indemnity under the Company shall not be required to bear the costs and expenses provisions of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation5.02.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Stockholder Distribution Trust Agreement (FX Real Estate & Entertainment Inc.), Trust Agreement (FX Real Estate & Entertainment Inc.)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason Without limitation of Section 11.05 of the fact that he is Amended and Restated Credit Agreement or was a directorany other indemnification provision in any Loan Document, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall each Guarantor agrees to indemnify the Executive and hold him harmless each Secured Party and each of their affiliates and their respective officers, directors, employees, agents, and advisors (each, an “Indemnified Party”) from and against reasonable any and all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees)including, judgmentswithout limitation, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including reasonable attorneys’ fees) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any litigation or proceeding or preparation of defense in connection therewith) the Executive in appearing atLoan Documents, participating inany of the transactions contemplated herein or the actual or proposed use of the proceeds of the Loans or other extension of credit under the Loan Documents, except to the extent such claim, damage, loss, liability, cost, or defending any threatened, pending expense resulted from such Indemnified Party’s gross negligence or completed action, suit willful misconduct. In the case of litigation or proceeding, whether civil, criminal, administrative or investigative, shall be paid by other proceeding to which the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below indemnity in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim22 applies, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings indemnity shall be prosecuted diligently effective whether or not such litigation or proceeding is brought by the Company to a final conclusion such Guarantor or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise other Borrower or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Periodany other Guarantor, any motionof their respective directors, answer shareholders or other pleadings which he shall deem necessary creditors, or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third an Indemnified Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b)other Person, or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently any Indemnified Party is otherwise a party thereto and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the transactions contemplated hereby are consummated. Each Guarantor agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to it, any of its subsidiaries or Affiliates, or any security holders or creditors thereof arising out of, related to or in connection with the transactions contemplated herein, except to the extent that such liability resulted from such Indemnified Party’s gross negligence or willful misconduct. Each Guarantor agrees not to assert any claim against any Secured Party, any of its Affiliates, or any of their directors, officers, employees, attorneys, agents, or advisers, on any theory of liability, for special, indirect, consequential, or punitive damages arising out of or otherwise relating to the Loan Documents, any of the transactions contemplated therein or the actual or proposed use of the proceeds of the Loans or other extension of credit under the Loan Documents. The Guarantors and the Borrower, as a party whole, will not be obligated under this Section 22 or any indemnification provision of any other Loan Document for (i) more than one firm of attorneys (together with local counsel from other firms, if reasonably necessary) representing Agent and all Lenders on any matter for which indemnification is alleged sought, or proved(ii) any disputes or claims between the Agent and any one or more of the Lenders or between any Lender with one or more other Lenders. The agreements in this Section 22 shall survive repayment of all of the Guarantors’ Obligations and the termination or expiration of this Guaranty Agreement in any manner, including but not limited to termination upon occurrence of the Termination Date.
Appears in 2 contracts
Samples: Unlimited Continuing Guaranty Agreement, Unlimited Continuing Guaranty (QC Holdings, Inc.)
Indemnification. 8.1 If The Company hereby agrees to indemnify and hold harmless Lead Investor and its affiliates and each of their directors, officers, managers, agents, employees, members and counsel (collectively, the “Lead Investor Indemnified Parties”) to the fullest extent permitted by law from and against any and all losses, claims, damages, expenses, or liabilities (or actions in respect thereof), joint or several, to which they or any of them may become subject under any statute or at common law, including any time reasonable legal or other expense (including but not limited to the Executive cost of any investigation, preparation, or response to third party subpoenas) incurred by them (“Losses”) in connection with any third party claims, litigation or administrative or regulatory action (“Proceeding”), whether pending or threatened, and whether or not resulting in any liability, in each case, insofar as such losses, claims, liabilities, or litigation or Losses arise out of or are based upon any wrongful act of the Company (or any act that is alleged in good faith by a third party plaintiff or is threatened claimant not affiliated with and not serving as an agent or representative of Lead Investor to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent wrongful act of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him ) in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsEngagement; provided, however, that the Executive may they shall not enter into, apply to (i) amounts paid in settlement of any such litigation if such settlement is effected without the consent of the Company’s consent, which shall consent will not be unreasonably withheld, any compromise conditioned or settlement of such Third Party Claim. Notwithstanding the foregoingdelayed or (ii) Losses determined, if the Company has delivered by a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of non-appealable judgment by a court or arbitral tribunal of competent jurisdiction, to have arisen from the willful misconduct or gross negligence of Lead Investor Indemnified Parties, in which case the Company shall not will be required liable only for the portion fairly allocated to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or judicially determined wrongdoing of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse . Lead Investor will indemnify the Company promptly and its directors, officers, managers, agents, employees, members and counsel for Losses resulting from claims of third parties not affiliated with and not serving as an agent or representative of Company in full for all costs any Proceeding of arising out of Lead Investor’s willful misconduct or gross negligence; provided that clauses (i) and expenses of such litigation(ii) above will apply mutatis mutandis to this sentence. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to provisions of this Section 8.3(c)4 shall survive any termination or expiration of this Agreement. This Section 4 will not apply to Emily’s service on the Company’s Board; provided however, and that Xxxxx will be offered the opportunity to enter into the Company’s standard form of indemnification agreement for directors of the Company shall bear its own costs and expenses in connection with respect to such participationservice.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Indemnification. 8.1 If at any time the Executive is a party or is threatened 7.1. Subject to be made a party to any threatenedSection 8, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive indemnify, defend, and hold him harmless from and against reasonable expenses (including any damages, costs, attorneys’ fees), judgmentspenalties, fines, penaltiesliabilities, amounts paid or expenses that arise from third party actions or claims (collectively, “Losses”) against Fortinet and its affiliates, officers and directors, employees, agents, and representatives relating to (a) death or injury to persons caused by the Company;(b) a violation of applicable laws by the Company; or (c) Company’s infringement of a third Party’s intellectual property rights where such third Party is located in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit either the country where the Services were provided or proceeding to the full extent permitted by lawreceived.
8.2 Expenses (including 7.2. Subject to Section 8, Fortinet shall indemnify, defend, and hold harmless from and against any damages, costs, attorneys’ fees) incurred by the Executive in appearing at, participating inpenalties, fines, liabilities, or defending any threatenedexpenses that arise from third party actions or claims (collectively, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the “Losses”) against Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive relating to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive death or injury to persons caused by the Fortinet; or (b) Fortinet’s infringement of a third Party’s intellectual property rights where such third Party is located in either the country where the Services were provided or received, provided however that Fortinet shall not have any liability to Company under this Section to the extent that any infringement or claim thereof is attributable to: (i) shall promptly notify the combination, operation or use of a Deliverable with equipment or software supplied by Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and where the Deliverable would not itself be infringing; (ii) shall transmit to compliance with designs, specifications or instructions provided by Company; (iii) use of a Deliverable in an application or environment for which it was not designed or contemplated under these terms and conditions; or (iv) modifications of a Deliverable by anyone other than Fortinet where the Company a written notice (“Claim Notice”) describing in reasonable detail the nature unmodified version of the Third Party ClaimDeliverable would not have been infringing. Fortinet will completely satisfy its obligations hereunder if, after receiving notice of a copy of all papers served with respect claim, Fortinet obtains for Company the right to continue using such claim (if any)Deliverables as provided without infringement, and the basis of his request for indemnification under this Agreementor replace or modify such Deliverables so that they become non-infringing.
(b) Within 30 days 7.3. Promptly after receipt an indemnitee receives notice of any Claim Notice (“Election Period”)claim for which it will seek indemnification pursuant to these terms and conditions, the Company shall indemnitee will notify the Executive (i) whether indemnitor of the Company disputes its potential liability claim in writing. No failure to so notify the Executive indemnitor will abrogate or diminish the indemnitor’s obligations under this Section 8 with respect if the indemnitor has or receives knowledge of the claim by other means or if the failure to such Third Party Claim and (ii) whether the Company desires, at notify does not materially prejudice its sole cost and expense, ability to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b)claim. The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.Within fifteen
Appears in 2 contracts
Samples: Professional Services, Professional Services
Indemnification. 8.1 If at Subject to the provisions of this Section 4.8, the Company will indemnify and hold the Investor and its directors, officers, stockholders, partners, managers, members, employees and agents (each, an “Investor Party”) harmless from any time and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and attorneys’ fees and costs of investigation, that any such Investor Party may suffer or incur (the Executive is “Indemnified Liabilities”) as a party result of or is threatened to be made a party relating to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason breach of any of the fact that he is representations, warranties, covenants or was a director, officer, employee or agent of the Company, or is or was serving at the request of agreements made by the Company as a director, officer, employee in this Agreement (which shall survive the Closing). The Company shall not be liable to any Investor Party under this provision in respect of any Indemnified Liability if (and then only to the extent) such liability arises out of any misrepresentation by the Investor in Section 3 of this Agreement or agent actions taken by such Investor Party in violation or contravention of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprisethis Agreement. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall indemnify make the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding maximum contribution to the full extent permitted by payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending . If any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, action shall be paid by the Company at reasonable intervals brought against any Investor Party in advance respect of the final disposition of which indemnity may be sought pursuant to this Agreement, such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) Investor Party shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any)writing, and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at assume the sole cost and expense defense thereof with counsel of the Company, the Third its own choosing. Any Investor Party Claim. The Executive shall have full control of the right to employ separate counsel in any such action and participate in the defense and proceedings; providedthereof (it being understood, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear liable for the costs and expenses of more than one separate counsel (other than local counsel)), but the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs fees and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled counsel shall be at the expense of such Investor Party except to the extent that (i) the employment thereof has been specifically authorized by the Executive pursuant Company in writing, (ii) the Company has failed after a reasonable period of time to this Section 8.3(c)assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the Company shall bear its own costs and expenses with respect to position of such participationInvestor Party.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Optimer Pharmaceuticals Inc), Common Stock Purchase Agreement (Cadence Pharmaceuticals Inc)
Indemnification. 8.1 If at (a) For a period of six years immediately following the Effective Time, the Surviving Corporation shall indemnify, defend, and hold harmless each of the current and former directors, officers, and employees of the Company and the Bank and their Subsidiaries, determined as of immediately prior to the Effective Time (each, an “Indemnified Party”), against any time the Executive is a party or is threatened to be made a party to and all costs and expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, amounts paid in settlement, and liabilities incurred in connection with any threatenedclaim, pending or completed action, suit suit, proceeding, or proceedinginvestigation, whether civil, criminal, administrative administrative, or investigative, by reason arising out of or relating to matters existing or occurring at or prior to the Effective Time (including the negotiation, execution, or performance of this Agreement or the consummation of the Merger), whether asserted or claimed prior to, at, or after the Effective Time, and based on or pertaining to the fact that he is or she was a director, officer, or employee or agent of the Company, Company or is the Bank or any of their Subsidiaries or was serving at the request of the Company or the Bank or any of their Subsidiaries as a director, officer, employee employee, agent, trustee, or agent partner of another corporation, partnership, trust, joint venture, trust, employee benefit plan plan, or other enterpriseentity, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full fullest extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not Indemnified Party would have been entitled to be so indemnified.
8.3 All claims for indemnification , defended, and held harmless under the articles of incorporation and bylaws (or comparable governing documents) of the Company and the Bank and their Subsidiaries as in effect as of the date of this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify including the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit provisions thereof, if any, relating to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature advancement of the Third Party Claim, a copy of all papers served with respect to such claim (if anyexpenses), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt Any Indemnified Party wishing to claim indemnification under this Section 7.11, upon learning of any Claim Notice such claim, action, suit, proceeding, or investigation, shall promptly notify the Surviving Corporation of the same; provided that the failure of the Indemnified Party to so notify the Surviving Corporation shall not relieve the Surviving Corporation of any Liability it may have to such Indemnified Party if such failure does not actually and materially prejudice the Surviving Corporation (“Election Period”and then only to the extent of such prejudice). In the event of any such claim, action, suit, proceeding, or investigation (whether arising before, at, or after the Effective Time), the Company shall notify the Executive (i) whether the Company disputes its potential liability Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to the Executive under this Section 8 Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Party in connection with respect the defense thereof, except that, (A) if the Surviving Corporation elects not to assume such Third defense or (B) if counsel for the Indemnified Party Claim advises the Surviving Corporation in writing that there are legal defenses available to the Indemnified Party that are different from or in addition to those available to the Surviving Corporation or that there are issues which raise conflicts of interest between the Surviving Corporation and the Indemnified Party that make joint representation inappropriate, the Indemnified Party may retain its own legal counsel and the Surviving Corporation shall pay, as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Party (which may not exceed one firm in any jurisdiction unless there are multiple Indemnified Parties who have conflicts of interest), (ii) whether the Company desiresIndemnified Party will cooperate in the defense thereof, at (iii) the Surviving Corporation shall not be liable for any settlement effected without its sole cost prior written consent, and expense, to defend (iv) the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company Surviving Corporation shall have full control no obligation hereunder in the event a federal or state banking agency or a court of such defense and proceedings, including any compromise or settlement thereof. The Executive competent jurisdiction shall determine that indemnification of an Indemnified Party in the manner contemplated hereby is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested prohibited by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationapplicable Law.
(c) If Prior to the Effective Time the Company fails shall obtain, or shall cause the Bank to notify obtain, and after the Executive within Effective Time the Election Period that Surviving Corporation shall maintain, a “tail” policy under the Company elects Entegra Parties’ existing directors’ and officers’ liability insurance policy providing coverage for a period of six years immediately after the Effective Time for Persons who are immediately prior to defend the Executive pursuant to Subsection 8.3(bEffective Time covered by the Entegra Parties’ existing directors’ and officers’ liability insurance policy (the “Tail Insurance”), or if which Tail Insurance shall provide for at least the Company elects to defend same coverage and coverage amounts as, and contain terms and conditions not materially less advantageous than, those currently provided for by the Executive pursuant to Subsection 8.3(b) but fails to diligently Entegra Parties’ existing directors’ and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsofficers’ liability insurance policy; provided, however, that the Executive may not enter intothat, without the Company’s consentprior written consent of SmartFinancial, which the Entegra Parties shall not be unreasonably withheld, any compromise or settlement expend for such Tail Insurance (for said six-year period) an amount in excess of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor 250% of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled most recent annual premium paid by the Executive pursuant to this Section 8.3(c), Entegra Parties for their existing directors’ and the Company shall bear its own costs and expenses with respect to such participationofficers’ liability insurance policy.
(d) The indemnification provided by In the event the Surviving Corporation or any of its successors or assigns shall consolidate with or merge with or into any other Person and shall not be the continuing or surviving entity of such consolidation or merger, or shall transfer all or substantially all of its properties and assets to any other Person, then, and in each such case, proper provision shall be made so that the successors or assigns of the Surviving Corporation assume the obligations of the Surviving Corporation set forth in this Section 8 shall apply whether or not 7.11.
(e) Any indemnification payments made pursuant to this Section 7.11 are subject to and conditioned upon their compliance with Section 18(k) of the negligence of a party is alleged or provedFDIA (12 U.S.C. § 1828(k)) and the regulations promulgated thereunder by the FDIC (12 C.F.R. Part 359).
Appears in 2 contracts
Samples: Merger Agreement (Entegra Financial Corp.), Merger Agreement (Smartfinancial Inc.)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company Except as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseotherwise provided for herein, the Company Sellers shall jointly and severally indemnify the Executive and hold him the Purchasers and their representatives and agents (each a “Purchaser Party”) harmless against reasonable expenses (from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including attorneys’ fees), all judgments, fines, penalties, amounts paid in settlement settlements, court costs and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including reasonable attorneys’ feesfees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (1) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance breach of any of the final disposition representations, warranties, covenants or agreements made by a Seller in this Agreement; (2) any action instituted by any stockholder of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he SMSA Gainesville who is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature an affiliate of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense Purchasers with respect to the Third Party Claim)transaction contemplated herein; (3) any action arising out of or related to a predecessor entity of SMSA Gainesville; (4) any action or claim, arising out of or related to fileany prior bankruptcy or plan of reorganization involving predecessor entities that were merged into or with SMSA Gainesville or with whom SMSA Gainesville entered into any form of business combination, during share exchange, or similar transaction with; (5) any material breach of this Agreement by any Seller or any material misrepresentation contained herein or in any public disclosure or (6) any misstatement of a material fact or omission to state a material fact required to be stated herein or in any public disclosure by Sellers or SMSA Gainesville or necessary to make the Election Period, statements herein or in any motion, answer public disclosure by Sellers or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and SMSA Gainesville not prejudicial to the Companymisleading. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint action shall be brought against any person. The Executive Purchaser Party in respect of which indemnity may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company be sought pursuant to this Section 8.3 Agreement, Purchaser Party shall promptly notify each Seller in writing, and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive Sellers shall have the right to defendassume the defense thereof with counsel of its own choosing, at which choice is subject to the approval of the Purchaser Party, which approval may be withheld in the sole cost and expense discretion of the Company, the Third Purchaser Party. Any Purchaser Party Claim. The Executive shall have full control of the right to employ separate counsel in any such action and participate in the defense and proceedings; providedthereof, however, that but the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs fees and expenses of such litigationcounsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Sellers in writing; (ii) the Sellers have failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Sellers and the position of such Purchaser Party, in which case the Sellers shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company may participate inSellers will not be liable to any Purchaser Party under this Agreement to the extent, but not controlonly to the extent that a loss, claim, damage or liability is attributable to any defense Purchaser Party’s breach of any of the representations, warranties, covenants or settlement controlled agreements made by the Executive pursuant to such Purchaser Party in this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationAgreement.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Southwest Iowa Renewable Energy, LLC), Stock Purchase Agreement (Smsa Gainesville Acquisition Corp.)
Indemnification. 8.1 If at Each Party agrees to indemnify and hold harmless the other Party, its affiliates and their respective officers, directors, members, partners, employees, agents and affiliates and control persons of any time of the Executive is a party above (each an “Indemnified Person”) from and against all claims, liabilities, losses or is threatened damages (or actions in respect thereof) or other expenses that are related to or arise out of (i) actions taken or omitted to be taken (including any untrue statements made a party or any statements omitted to be made) by the other Party, (ii) any threatenedbreach of any warranty, pending representation or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason agreement of the fact that he is other Party contained in this Agreement, or was a director, officer, employee (iii) actions taken or agent omitted to be taken by an Indemnified Person with the consent of or in conformity with the actions or omissions of the Companyother Party. Neither Party shall not be responsible, however, for any losses, claims, damages, liabilities or is expenses pursuant to the preceding sentence that are finally judicially determined to have resulted from the other Party’s or was serving at such other Indemnified Person’s grossly negligent, reckless or wrongful conduct, and each Party agrees to indemnify and hold the request other Party harmless from any claims, losses, liabilities or damages incurred by one Party arising out of the Company other Party’s grossly negligent, reckless or wrongful conduct as determined in a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against final judicial determination. The Parties agree to reimburse each Indemnified Person for all reasonable out-of-pocket expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement reasonable fees and other liabilities actually and reasonably incurred by him expenses of counsel for such Indemnified Person) of such Indemnified Person in connection with such actioninvestigating, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing atpreparing, participating in, conducting or defending any threatened, pending such action or completed action, suit or proceedingclaim, whether civilor not in connection with litigation in which any Indemnified Person is a named party, criminal, administrative or investigative, shall be paid by in connection with enforcing the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt rights of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification Indemnified Person under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive . The indemnity agreements under this Section 8 with respect to such Third Party Claim and (ii) whether shall survive the completion of services rendered for Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 Omni View and the Company shall bear his costs and expenses with respect to such participationtermination or expiration of this Agreement.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Financial Advisory Agreement (Silver Falcon Mining, Inc.), Financial Advisory Agreement (Blue Calypso, Inc.)
Indemnification. 8.1 If at The Company will indemnify and hold harmless BMP, its affiliates and their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents and representatives (each such person being an "INDEMNIFIED PARTY") from and against any time and all losses, claims, damages and liabilities, whether joint or several (the Executive "LIABILITIES"), related to, arising out of or in connection with the Services contemplated by this Agreement or the engagement of BMP pursuant to, and the performance by BMP of the services contemplated by, this Agreement, whether or not pending or threatened, whether or not an Indemnified Party is a party, whether or not resulting in any liability and whether or not such action, claim, suit, investigation or proceeding is initiated or brought by the Company. The Company will reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys' fees and expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party or is threatened to thereto. The Company will not be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of liable under the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for foregoing indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served provision with respect to any particular loss, claim, damage, liability, cost or expense of an Indemnified Party that is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted primarily from the gross negligence or willful misconduct of such claim (if any)Indemnified Party. If an Indemnified Party is reimbursed hereunder for any expenses, and the basis such reimbursement of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability expenses will be refunded to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether extent it is finally judicially determined that the Company desires, at its sole cost and expense, to defend Liabilities in question resulted primarily from the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion gross negligence or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control willful misconduct of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationIndemnified Party.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Transaction and Monitoring Fee Agreement (TRW Automotive Inc), Transaction and Monitoring Fee Agreement (TRW Automotive Inc)
Indemnification. 8.1 (a) The Company hereby agrees to indemnify, defend and hold harmless the Consultant, its directors, officers, principals, employees, agents, affiliates, shareholders and consultants, and their successors and assigns from and against any and all claims, damages, losses, liability, deficiencies, actions, suits, proceedings, costs or legal expenses (collectively the "Losses") arising out of or resulting from: (i) any breach of a representation, warranty or covenant by the Company contained in this Agreement; or (ii) any and all costs and expenses (including reasonable attorneys' and paralegals' fees) related to the foregoing, and as more fully described below.
(b) If at the Consultant receives written notice of the commencement of any time legal action, suit or proceeding with respect to which the Executive Company is or may be obligated to provide indemnification pursuant to Section 5 above, the Consultant shall, within 30 days of the receipt of such written notice, give the Company written notice thereof (a party or is threatened "Claim Notice"). Failure to be made give such Claim Notice within such 30-day period shall not constitute a party waiver by the Consultant of its right to any threatened, pending or completed indemnity hereunder with respect to such action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid . Upon receipt by the Company at reasonable intervals in advance of a Claim Notice from the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive Consultant with respect to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims any claim for indemnification under this Agreement shall be asserted and resolved as which is set forth below in this Section 8.3.
based upon a claim made by a third party (a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“"Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to "), the Company a written notice (“Claim Notice”) describing in reasonable detail Consultant may assume the nature defense of the Third Party ClaimClaim with counsel of its own choosing, a copy as described below. The Company shall cooperate in the defense of the Third Party Claim and shall furnish such records, information and testimony and attend all papers served with respect such conferences, discovery proceedings, hearings, trial and appeals as may be reasonably required in connection therewith. the Consultant shall have the right to employ its own counsel in any such claim (if any)action, but the fees and expenses of such counsel shall be at the basis expense of his request the Company. The Company shall not satisfy or settle any Third Party Claim for which indemnification under this Agreement.
(b) Within 30 days after receipt has been sought and is available hereunder, without the prior written consent of any Claim Notice (“Election Period”), the Consultant. If the Company shall notify the Executive (i) whether the Company disputes its potential liability fail with reasonable promptness either to the Executive under this Section 8 with respect defend or continue to prosecute such Third Party Claim and (ii) whether or to satisfy or prosecute the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Companysame, the Executive agreesConsultant may defend, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, Claim at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect pay to the Consultant the amount of any such participation.
(d) Loss within 10 days after written demand therefor. The indemnification provided by provisions hereunder shall survive the termination of this Section 8 shall apply whether or not the negligence of a party is alleged or provedAgreement.
Appears in 2 contracts
Samples: Advisory Agreement (Eventure Interactive, Inc.), Advisory Agreement (Eventure Interactive, Inc.)
Indemnification. 8.1 If at any time the Executive is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive Financial Institution shall indemnify and hold harmless FSC, each Fund, the transfer agents of the Funds, and their respective subsidiaries, affiliates, officers, directors, agents and employees from all direct or indirect liabilities, losses or costs (iincluding attorneys fees) shall promptly notify the Company arising from, related to or otherwise connected with: (1) any breach by Financial Institution of any third-party claim provision of this Agreement; or claims asserted against him (“Third Party Claim”2) that could give rise to a right any actions or omissions of indemnification under this Agreement and (ii) shall transmit to FSC, any Fund, the Company a written notice (“Claim Notice”) describing in reasonable detail the nature transfer agents of the Third Party Claim, a copy of all papers served with respect to such claim (if any)Funds, and the basis their subsidiaries, affiliates, officers, directors, agents and employees in reliance upon any oral, written or computer or electronically transmitted instructions believed to be genuine and to have been given by or on behalf of his request for indemnification under this AgreementFinancial Institution.
(b) Within 30 days after receipt FSC shall indemnify and hold harmless Financial Institution and its subsidiaries, affiliates, officers, directors, agents and employees from and against any and all direct or indirect liabilities, losses or costs (including attorneys fees) arising from, related to or otherwise connected with: (1) any breach by FSC of any Claim Notice provision of this Agreement; or (“Election Period”)2) any alleged untrue statement of a material fact contained in any Fund's Registration Statement or Prospectus, or as a result of or based upon any alleged omission to state a material fact required to be stated therein or necessary to make the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and statements contained therein not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationmisleading.
(c) If The agreement of the Company fails parties in this Paragraph to notify indemnify each other is conditioned upon the Executive within party entitled to indemnification (Indemnified Party) giving notice to the Election Period party required to provide indemnification (Indemnifying Party) promptly after the summons or other first legal process for any claim as to which indemnity may be sought is served on the Indemnified Party. The Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting from it, provided that counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be approved by the Indemnified Party (which approval shall not unreasonably be withheld), and that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Indemnified Party Claim, then the Executive shall have the right to defend, may participate in such defense at the sole cost and expense its expense. The failure of the CompanyIndemnified Party to give notice as provided in this subparagraph (d) shall not relieve the Indemnifying Party from any liability other than its indemnity obligation under this Paragraph. No Indemnifying Party, in the Third Party Claim. The Executive shall have full control defense of any such defense and proceedings; providedclaim or litigation, however, that the Executive may not enter intoshall, without the Company’s consentconsent of the Indemnified Party, which shall consent to entry of any judgment or enter into any settlement that does not be unreasonably withheld, any compromise include as an unconditional term the giving by the claimant or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice plaintiff to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order Indemnified Party of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly release from all liability in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationclaim or litigation.
(d) The indemnification provided by provisions of this Section 8 Paragraph 10 shall apply whether or not survive the negligence termination of a party is alleged or provedthis Agreement.
Appears in 2 contracts
Samples: Mutual Funds Sales and Service Agreement (Wachovia Variable Insurance Funds), Sales and Service Agreement (Wachovia Variable Insurance Funds)
Indemnification. 8.1 If at any time The Company hereby agrees to indemnify and hold harmless the Executive is a party or is threatened to be made a party to any threatenedConsultant, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterpriseits affiliates and its and their respective Representatives (collectively, the Company shall indemnify the Executive “Consultant Related Parties”) against and hold him harmless against reasonable from any and all losses, liability, suits, claims, costs, damages and expenses (including attorneys’ fees) arising from or relating to this Agreement or their performance hereunder (collectively, the “Indemnified Liabilities”), judgmentsexcept as a result of the Consultant’s fraud, fineswillful misconduct or gross negligence. The rights of any Consultant Related Party to indemnification hereunder will be in addition to any other rights any such person may have under any other agreement or instrument to which such Consultant Related Party is or becomes a party or is or otherwise becomes a beneficiary or under law or regulation. The Company hereby acknowledges that each Consultant Related Party may have certain rights to indemnification, penaltiesadvancement of expenses and/or insurance provided by one or more persons or entities with whom or which such Consultant Related Party may be associated (including, amounts paid without limitation, any other Consultant Related Party). The Company hereby acknowledges and agrees that (a) the Company shall be the indemnitor of first resort with respect to any Indemnified Liability, (b) the Company shall be primarily liable for all Indemnified Liabilities and any indemnification afforded to any Consultant Related Party in settlement and respect of any Indemnified Liabilities, whether created by law, organizational or constituent documents, contract (including this Agreement) or otherwise, (c) any obligation of any other liabilities actually and reasonably incurred by him person or entity with whom or which any Consultant Related Party may be associated (including, without limitation, any other Consultant Related Party) to indemnify such Consultant Related Party and/or advance expenses to such Consultant Related Party in connection with such action, suit or respect of any proceeding shall be secondary to the full extent permitted by law.
8.2 Expenses obligations of the Company hereunder, (including attorneys’ feesd) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, Company shall be required to indemnify each Consultant Related Party and advance expenses to each Consultant Related Party hereunder to the fullest extent provided herein without regard to any rights such Consultant Related Party may have against any other person or entity with whom or which such Consultant Related Party may be associated (including, without limitation, any other Consultant Related Party) or insurer of any such person or entity and (e) the Company (on behalf of itself and its insurers) irrevocably waives, relinquishes and releases any other person or entity with whom or which any Consultant Related Party may be associated from any claim of contribution, subrogation or any other recovery of any kind in respect of amounts paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnifiedhereunder.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participation.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Professional Services Agreement (Frontier Group Holdings, Inc.), Professional Services Agreement (Frontier Group Holdings, Inc.)
Indemnification. 8.1 If at any time the Executive is a party or is threatened The Company shall effect reasonable best efforts to maintain appropriate liability insurance for its officers, directors, and personnel to which Toews shall be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the party. The Company shall indemnify make the Executive Toews and hold him harmless against reasonable expenses (including attorneys’ fees)its personnel parties to all liability insurance policies, judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses such policies, which may be acquired for the benefit of all or any of the Company’s board or management. Toews and its personnel (including attorneys’ feesthe “Indemnified Party”) incurred shall be indemnified and funded on a current basis for all losses, damages, legal expenses, and any other expenses or costs of any nature which may be occasioned by their service with the Executive in appearing atCompany. Inter alia, participating inthis indemnity shall apply to all manner of actions, proceedings, or defending any threatened, pending or completed action, suit or proceedingprosecutions, whether civil, regulatory, or criminal, administrative to which the Indemnified Party may be subject due in whole or investigativein part to the Services provided herein or by virtue of any office held. This indemnity shall apply both during and after its Term for all matters arising during the Term, and any extension, until any limitation period has expired in respect to any action which might be contemplated. The Company shall not refuse coverage for any purpose or reason and a strict presumption of innocence shall be paid by applied and the Company at reasonable intervals may only seek refund of any coverage in advance the case of the final disposition finding of such actionfraud or criminal culpability, suit or proceeding upon receipt after exhaustion of an undertaking by the Executive to repay such amounts if it all appeals. The Company shall ultimately not be determined that he is not entitled to be indemnified.
8.3 All claims reimbursed any costs or expenses in the event settlement or of any finding of civil fault or liability except where fraud has been found and all appeals exhausted. The Company shall diligently seek and support any court approvals for indemnification under this Agreement the within indemnity as the Indemnified Party may require. The Company shall pay all such retainers and trust requirements as counsel for the Indemnified Party may require and shall pay all accounts of counsel as they come due and such accounts shall be asserted and resolved as is set forth below rendered in this Section 8.3.
(a) The Executive (i) shall promptly notify the name of the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to and, further, should the Company a written notice (“Claim Notice”) describing in fail to pay any reasonable detail the nature of the Third Party Claimaccount, a copy of it shall attorn to all papers served with respect to such claim (if any)actions, summary judgments, and garnishing orders as such counsel may consider fit to enforce and receive payment of its account. On request of Toews, or otherwise the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”)Indemnified Party, the Company shall notify immediately activate, establish and fund, as a fund alienated from the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion title of the Company in accordance with and into trust for the Indemnified Party, the Indemnity Agreement of schedule “A” hereto (which Indemnity Agreement is incorporated herein and made a part of this Subsection 8.3(b)Agreement) and the fund therein established. The Company shall have full control of such defense and proceedings, including not seek to settle or compromise any compromise or settlement thereof. The Executive is hereby authorized, at action without the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those approval of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigationIndemnified Party. The Company may participate in, but not control, warrants it shall employ due diligence and good faith and seek the best interests of the Indemnified Party as defendants in any defense action or settlement controlled by the Executive pursuant to this Section 8.3(c), and prosecution. The Indemnified Party shall permit the Company shall bear its own costs to consult with their counsel and expenses with respect to such participationbe informed of any matters thereof, subject only to any requirements for legal privilege purposes.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Management Agreement (Vampt America, Inc.), Management Agreement (Coronado Corp.)
Indemnification. 8.1 If at (a) The Company shall (i) indemnify and hold harmless the Manager and any time Affiliate of the Executive is a party Manager and each of their respective directors, officers, employees and agents (each, an “Indemnified Party”) from and against all losses, claims, damages, expenses or is threatened liabilities to which such Indemnified Party may become subject (except in respect of the broker-dealer engaged by the Manager in respect of the placement of Contracts, which shall be the sole liability of the Manager), insofar as such losses, claims, damages, expenses or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof) arise out of, in any way relate to, or result from the transactions contemplated by, this Agreement, and (ii) reimburse each of the Indemnified Parties upon its demand for any reasonable legal or other expenses incurred in connection with investigating, preparing to defend or defending any such loss, claim, damage, liability, action or claim, in each case only to the extent that funds are available therefor in accordance with the Security Agreement; provided, however, that none of the Indemnified Parties shall have the right to be made a party so indemnified hereunder for losses, claims, damages, expenses or liabilities to the extent resulting from its own negligence or willful misconduct or for losses, claims, damages, expenses or liabilities that it is required to pay to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of broker-dealer that it has engaged in connection with the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan Contracts or other enterpriseliabilities. If any action is brought against an Indemnified Party indemnified or intended to be indemnified pursuant to this Section 2.12, the Company shall indemnify the Executive shall, if requested by such Indemnified Party, resist and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with defend such action, suit or proceeding or cause the same to the full extent permitted be resisted and defended by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing atcounsel reasonably satisfactory to such Indemnified Party, participating in, but shall not be empowered to compromise or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of settle such action, suit or proceeding upon receipt unless such Indemnified Party has been fully indemnified for any loss, claim, damage, expense or liability it thereby suffers. Each Indemnified Party shall, unless the Indemnified Party has made the request described in the preceding sentence and such request has been complied with, have the right to employ its own counsel to investigate and control the defense of an undertaking any matter covered by such indemnity and the Executive to repay reasonable fees and expenses of such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement counsel shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion expense of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making Any obligations of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 2.12 are Deferred Expenses and the Company Manager shall bear his costs and expenses with respect have recourse solely to the LOC Reimbursement Account for such participation.
(c) If obligations of the Company fails (and not to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense any other assets of the Company, ) and shall be paid in the Third Party Claimpriority specified in the applicable sections of Article VII of the Security Agreement. The Executive shall have full control of Manager hereby expressly consents to such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice limited recourse to the Executive LOC Reimbursement Account and to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved priorities of distributions set forth in favor Article VII of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationSecurity Agreement.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Liability and Portfolio Management Agreement (Genworth Financial Inc), Liability and Portfolio Management Agreement (Genworth Financial Inc)
Indemnification. 8.1 If The Company hereby agrees to indemnify the Collateral Agent and, in their respective capacities as such, its officers, directors, controlling persons, employees, agents and representatives (each an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, obligations, penalties, actions, causes of action, judgments, suits, costs, expenses, or disbursements (including, without limitation, reasonable attorneys’ and consultants’ fees and expenses) of any kind or nature whatsoever which may at any time the Executive is a party be imposed on, incurred by or is threatened to asserted against any Indemnified Party (or which may be made a party to claimed against any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, Indemnified Party by any person) by reason of the fact that he is or was a directorof, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such actionor in any way relating to or arising out of, suit any action taken or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred omitted by the Executive Collateral Agent in appearing at, participating in, compliance with the provisions of this Agreement or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by in reliance on written instructions from the Company at reasonable intervals in advance of the final disposition of such actionor, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of during any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Acceleration Event Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsSecured Party; provided, however, that the Executive may not enter into, without the Company’s consent, which Company shall not be unreasonably withheld, liable to any compromise or settlement Indemnified Party for any portion of such Third Party Claim. Notwithstanding the foregoingclaims, if the Company has delivered liabilities, obligations, losses, damages, penalties, judgments, costs, expenses, or disbursements resulting from Indemnified Party’s gross negligence or willful misconduct as determined by a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order non-appealable judgment of a court of competent jurisdiction. The Company further shall, upon demand by any Indemnified Party, pay to such Indemnified Party all documented costs and expenses incurred by such Indemnified Party in enforcing any rights under this Agreement, including reasonable fees and expenses of counsel. If the Company shall not be required fail to bear make any payment or reimbursement to any Indemnified Party for any amount as to which the costs and expenses of the Executive’s defense pursuant Company is obligated to indemnify such Indemnified Party under this Section 8 or 6.03, following exhaustion of all remedies against the Company and promptly after demand therefor, the Secured Party agrees to pay to such Indemnified Party the amount that has not been paid by the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to agreements in this Section 8.3(c), and 6.03 shall survive the Company shall bear its own costs and expenses with respect to such participationtermination of this Agreement.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Settlement Agreement (McDermott International Inc), Pledge and Security Agreement (McDermott International Inc)
Indemnification. 8.1 If at (a) To the fullest extent permitted by law, the Company shall indemnify and hold harmless each Indemnified Party from and against any time and all Indemnified Losses suffered or sustained by such Indemnified Party by reason of any act, omission or alleged act or omission arising out of, related to or in connection with the Executive is Company or this Agreement, or any and all Proceedings in which an Indemnified Party may be involved, as a party or is threatened otherwise, arising out of, related to or in connection with such Indemnified Party’s service to or on behalf of, or management of the affairs or assets of, the Company, or which relate to the Company, except for any Indemnified Losses that are Judicially Determined to be made a party primarily attributable to the bad faith, gross negligence, willful misconduct or fraud of such Indemnified Party. The Company shall also indemnify and hold harmless each Indemnified Party from and against any threatened, pending and all Indemnified Losses suffered or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, sustained by such Indemnified Party by reason of the fact that he is any acts, omissions or was a director, officer, employee alleged acts or omissions of any broker or agent of the Company; provided, that such broker or is agent was selected, engaged or was serving at the request retained by such Indemnified Party directly or on behalf of the Company as in accordance with the standard of care set forth above. The termination of a directorProceeding by settlement or upon a plea of nolo contendere, officeror its equivalent, employee shall not, of itself, create a presumption that such Indemnified Party’s acts, omissions or agent of another corporation, partnership, joint venture, trust, employee benefit plan alleged acts or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding omissions were primarily attributable to the full extent permitted by law.
8.2 bad faith, gross negligence, willful misconduct or fraud of such Indemnified Party. Expenses (including attorneys’ feeslegal and other professional fees and disbursements) incurred by in any Proceeding may, with the Executive in appearing atconsent of the Investment Manager, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding Proceeding upon receipt of an undertaking by the Executive or on behalf of such Indemnified Party to repay such amounts amount if it shall ultimately be determined that he such Indemnified Party is not entitled to be indemnified.
8.3 All claims indemnified by the Company as authorized hereunder. If for any reason (other than the bad faith, gross negligence, willful misconduct or fraud of such Indemnified Party, as set forth above) the foregoing indemnification under this Agreement is unavailable to such Indemnified Party, or insufficient to hold it harmless, then the Company shall be asserted and resolved contribute to the amount paid or payable by such Indemnified Party as a result of such Indemnified Losses in such proportion as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify appropriate to reflect the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to relative benefits received by the Company a written notice (“Claim Notice”) describing in reasonable detail Company, on the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any)one hand, and the basis of his request for indemnification under this AgreementIndemnified Party on the other hand or, if such allocation is not permitted by applicable law or regulation, to reflect not only the relative benefits referred to above but also any other relevant equitable considerations.
(b) Within 30 days after receipt of The rights accruing to any Claim Notice (“Election Period”), Indemnified Party under the Company indemnification provisions shall notify not exclude any other right to which such Indemnified Party may be lawfully entitled and shall survive the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control termination of such defense and proceedings, including Indemnified Party in any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial capacity relating to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense Notwithstanding any of the Companyforegoing to the contrary, the Third Party Claim. The Executive shall have full control provisions of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which this Section 4.07 shall not be unreasonably withheldconstrued so as to provide for the indemnification of any Indemnified Party for any liability (including liability under Federal securities laws which, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoingunder certain circumstances, if the Company has delivered a written notice impose liability even on Persons that act in good faith), to the Executive extent (but only to the effect extent) that such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the Company disputes its potential liability provisions of this Section 4.07 to the Executive under this Section 8, and if such dispute is resolved in favor of the Company fullest extent permitted by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationlaw.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement (AB Commercial Real Estate Private Debt Fund, LLC), Limited Liability Company Operating Agreement (AB Commercial Real Estate Private Debt Fund, LLC)
Indemnification. 8.1 If Customer shall indemnify and hold harmless Company, Company’s affiliated entities, and each of their respective officers, directors, employees, and agents (each, a “Company Party” and together the “Company Parties”), and shall defend, at Customer’s expense, and pay the cost of any time damages, settlement, award or other costs or expenses (including reasonable attorneys’ fees and all related costs) arising out of, or in connection with, any investigation, actual or threatened claim, suit, action or proceeding by any person or authority arising out of Customer’s or any End User’s (i) violation, or alleged violation, of any representation, warranty or covenant contained herein, (ii) use of the Executive Services, (iii) accessing the Company’s network, or (iv) other acts or omissions. In the event that any Company Party is required to respond to a third party or is threatened law enforcement subpoena that relates to be made a party to Customer or any threatened, pending End User’s data or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason use of the fact that he is or was a directorServices, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company Customer shall indemnify the Executive and hold him harmless against promptly reimburse such Customer Party for its reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ attorney’s fees) incurred by the Executive in appearing atcomplying with such subpoena. Any affected Company Party shall, participating inpromptly after receipt of notice of any investigation, claim, threat thereof, or defending the commencement of any threatenedaction against such Company Party in respect of which indemnity may be sought, pending notify the Customer of the same; provided that the failure of a Company Party to notify the Customer shall not relieve the Customer from any liability which it may have to an Company Party on account of the indemnity agreement contained in the prior paragraph, unless the Customer was materially prejudiced by such failure, and in no event shall relieve the Customer from any other liability which it may have to such Company Party. If any such claim or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, action shall be paid by the brought against a Company at reasonable intervals in advance of the final disposition of such actionParty, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately notify the Customer thereof and the Customer shall be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted participate therein and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify to assume the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit defense thereof with counsel reasonably satisfactory to the Company a Party. If the Customer assumes the defense thereof, it may not agree to any settlement of any such claim or action as the result of which any remedy or relief shall be applied to or against the Company Party (even if Customer is paying it), without the prior written notice (“Claim Notice”) describing in reasonable detail the nature consent of the Third Company Party, which may be given or withheld in such Company Party’s sole discretion. In any action hereunder as to which the Customer has assumed the defense thereof with counsel reasonably satisfactory to the Company Party, the Company Party Claimshall continue to be entitled to participate in the defense thereof, a copy with separate counsel of all papers served with respect to such claim (if any)its own choice, and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company Customer shall notify the Executive (i) whether the Company disputes its potential liability continue to the Executive under this Section 8 with respect be obligated hereunder to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making of any related counterclaim against the person asserting the Third Party Claim or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
(c) If the Company fails to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full Party for all the costs and expenses of such litigationseparate counsel. The If any Company may participate in, but Party employs such separate counsel it will not control, enter into any defense or settlement controlled agreement which is not approved by the Executive pursuant to this Section 8.3(c)Customer, and the Company shall bear its own costs and expenses with respect to such participationin Customer’s reasonable discretion.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Terms of Service, Terms of Service
Indemnification. 8.1 If at The Obligors agree to indemnify, defend and hold harmless, Bank, its parents and Affiliates and their officers, directors, shareholders, employees, attorneys and agents (collectively, the “Indemnified Parties”), from and against any time the Executive and all claims, liabilities, losses, damages, costs and expenses (whether or not such Indemnified Party is a party or is threatened to be made a party to any threatenedlitigation), pending including without limitation reasonable attorney’s fees and out of pocket costs and costs of investigation, document production, attendance at depositions or completed actionother discovery, suit incurred by any Indemnified Party with respect to, arising out of or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent consequence of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him in connection with such action, suit or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company of any third-party claim or claims asserted against him (“Third Party Claim”) that could give rise to a right of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature or any of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of his request for indemnification under this Agreement.
(b) Within 30 days after receipt of any Claim Notice (“Election Period”), the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desires, at its sole cost and expense, to defend the Executive against such Third Party Claim by any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contestLoan Documents, including without limitation, through the making any failure of any related counterclaim against the person asserting the Third Party Claim Obligor to pay when due (at maturity, by acceleration or otherwise) any principal, interest, fee or any cross-complaint against other amount due under this Agreement or the other Loan Documents, or any person. The Executive may participate in but not control, any defense or settlement other Event of Default; (b) the use by Borrower of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participation.
proceeds advanced hereunder; (c) If the Company fails transactions contemplated hereunder; or (d) any claim, demand, action or cause of action being asserted against any Indemnified Party by any other Person in connection with the transactions contemplated hereunder. Notwithstanding anything herein or elsewhere to notify the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b), or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Companycontrary, the Third Party Claim. The Executive shall have full control of such defense and proceedings; provided, however, that the Executive may not enter into, without the Company’s consent, which Obligors shall not be unreasonably withheldobligated to indemnify or hold harmless any Indemnified Party from any liability, any compromise loss or settlement damage resulting from the gross negligence, willful misconduct or unlawful actions of such Third Indemnified Party Claimor any violations by such Indemnified Party or Bank of any securities laws or other laws and regulations concerning financial institutions. Notwithstanding the foregoing, if the Company has delivered a written notice Any amount payable to the Executive to the effect that the Company disputes its potential liability to the Executive Bank under this Section 8, will bear interest at the Default Rate from the due date until paid. The Obligors’ obligations under this Section shall survive termination of this Agreement and if such dispute is resolved in favor repayment of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses with respect to such participationObligations.
(d) The indemnification provided by this Section 8 shall apply whether or not the negligence of a party is alleged or proved.
Appears in 2 contracts
Samples: Loan and Security Agreement (Intest Corp), Loan and Security Agreement (Intest Corp)
Indemnification. 8.1 If (a) In addition to all rights and remedies available to the Holders at law or in equity, Issuer hereby agrees to indemnify, exonerate and hold each Holder, the Collateral Agent and each of the partners, officers, directors, employees, Affiliates, agents, trustees and advisors of each Holder and the Collateral Agent (each an “Indemnified Party”) free and harmless from and against any time the Executive is a party or is threatened to be made a party to any threatenedand all actions, pending or completed causes of action, suit suits, losses, liabilities, damages and expenses, including Legal Costs (collectively, the “Indemnified Liabilities”), incurred by Indemnified Parties or proceeding, whether civil, criminal, administrative or investigative, by reason any of the fact that he is or was them as a director, officer, employee or agent of the Companyresult of, or is arising out of, or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, the Company shall indemnify the Executive and hold him harmless against reasonable expenses relating to (including attorneys’ fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by him a) any transaction entered into in connection with such actionthe Note Documents, suit (b) the use, handling, release, emission, discharge, transportation, storage, treatment or proceeding to the full extent permitted by law.
8.2 Expenses (including attorneys’ fees) incurred by the Executive in appearing at, participating in, or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Company at reasonable intervals in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the Executive to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified.
8.3 All claims for indemnification under this Agreement shall be asserted and resolved as is set forth below in this Section 8.3.
(a) The Executive (i) shall promptly notify the Company disposal of any third-party claim Hazardous Substance at any property owned or claims asserted against him leased by Issuer or any other Note Party or Obligor, (“Third Party Claim”c) that could give rise to a right any violation of indemnification under this Agreement and (ii) shall transmit to the Company a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served any Environmental Laws with respect to conditions at any property owned or leased by any Note Party or Obligor or the operations conducted thereon, (d) the investigation, cleanup or remediation of offsite locations at which any Note Party, any Obligor or their respective predecessors are alleged to have directly or indirectly disposed of Hazardous Substances or (e) the execution, delivery, performance or enforcement of this Agreement or any other Note Document by the respective parties thereto, except, in each case, to the extent any such claim (if any)Indemnified Liabilities result from the applicable Indemnified Party’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, Issuer hereby agrees to make the maximum contribution to the payment and satisfaction of each of the basis of his request for indemnification Indemnified Liabilities which is permissible under applicable law. Notwithstanding anything to the contrary herein, Issuer shall have no obligation under this AgreementSection 2.5(a) if the Non-Funding shall have occurred.
(b) Within 30 days after receipt All indemnification rights hereunder shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby without limit, regardless of any Claim Notice (“Election Period”)investigation, inquiry or examination made for or on behalf of, or any knowledge of, the Company shall notify the Executive (i) whether the Company disputes its potential liability to the Executive under this Section 8 with respect to such Third Party Claim and (ii) whether the Company desiresHolders, at its sole cost and expense, to defend the Executive against such Third Party Claim by their advisors and/or any appropriate proceedings, which proceedings shall be prosecuted diligently by the Company to a final conclusion or settled at the discretion of the Company in accordance with this Subsection 8.3(b). The Company shall have full control of such defense and proceedings, including any compromise Indemnified Parties or settlement thereof. The Executive is hereby authorized, at the Company’s sole cost and expense (but only if he is actually entitled to indemnification hereunder or if the Company assumes the defense with respect to the Third Party Claim), to file, during the Election Period, any motion, answer or other pleadings which he shall deem necessary or appropriate to protect his interests or those of the Company and not prejudicial to the Company. If requested acceptance by the Company, the Executive agrees, at the Company’s sole cost and expense, to cooperate with the Company and its counsel in contesting any Third Party Claim that the Company elects to contest, including without limitation, through the making Issuer of any related counterclaim against the person asserting the Third Party Claim certificate or any cross-complaint against any person. The Executive may participate in but not control, any defense or settlement of any Third Party Claim controlled by the Company pursuant to this Section 8.3 and the Company shall bear his costs and expenses with respect to such participationopinion.
(c) If In addition, Issuer agrees to reimburse any Indemnified Party within five Business Days after written demand for all reasonable expenses (including legal counsel fees for one counsel for the Company fails to notify Holders and the Executive within the Election Period that the Company elects to defend the Executive pursuant to Subsection 8.3(b)Collateral Agent) incurred by such Indemnified Party in connection with investigating, preparing or if the Company elects to defend the Executive pursuant to Subsection 8.3(b) but fails to diligently and promptly prosecute defending any such action or settle the Third Party Claim, then the Executive shall have the right to defend, at the sole cost and expense of the Company, the Third Party Claim. The Executive shall have full control of such defense and proceedingsclaim; provided, however, that the Executive may not enter into, without the Company’s consent, which shall not such Indemnified Party is entitled to be unreasonably withheld, any compromise or settlement of such Third Party Claim. Notwithstanding the foregoing, if the Company has delivered a written notice to the Executive to the effect that the Company disputes its potential liability to the Executive under this Section 8, and if such dispute is resolved in favor of the Company by final, nonappealable order of a court of competent jurisdiction, the Company shall not be required to bear the costs and expenses of the Executive’s defense pursuant to this Section 8 or of the Company’s participation therein at the Executive’s request, and the Executive shall reimburse the Company promptly in full for all costs and expenses of such litigation. The Company may participate in, but not control, any defense or settlement controlled by the Executive pursuant to this Section 8.3(c), and the Company shall bear its own costs and expenses indemnified hereunder with respect to such participation.
(d) claim. The indemnification provided by indemnity, contribution and expenses reimbursement obligations that Issuer has under this Section 8 2.5 shall be in addition to any liability that Issuer may otherwise have at law or in equity. Issuer further agrees that the indemnification and reimbursement commitments set forth in this Agreement shall apply whether or not the negligence Indemnified Party is a formal party to any such lawsuits, claims or other proceedings. Notwithstanding anything to the contrary herein, Issuer shall have no obligation under this Section 2.5(c) if the Non-Funding shall have occurred.
(d) Any indemnification of a party is alleged or provedpayments in respect of contribution to an Indemnified Party by Issuer pursuant to this Section 2.5 shall be effected by wire transfer of immediately available funds from Issuer to an account designated by such Indemnified Party within five Business Days after written demand.
Appears in 2 contracts
Samples: Note Purchase Agreement (Morgan Stanley), Note Purchase Agreement (Full Alliance International LTD)
