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Common use of Matters Involving Third Parties Clause in Contracts

Matters Involving Third Parties. (a) If any third party notifies any Party (an “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 12 contracts

Samples: Intellectual Property Purchase Agreement (Rci Hospitality Holdings, Inc.), Asset Purchase Agreement (Rci Hospitality Holdings, Inc.), Asset Purchase Agreement (Rci Hospitality Holdings, Inc.)

Matters Involving Third Parties. (ai) If any third party notifies any shall notify either Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that may is reasonably expected to give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five (5) business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on . Failure to notify the part of the Indemnified Party in notifying any Indemnifying Party shall not relieve the Indemnifying Party from of any obligation hereunder unless (and then solely liability that it may have to the extent) Indemnified Party, except to the Indemnifying Party extent the defense of such claim is thereby prejudicedmaterially prejudiced by the Indemnified Party’s failure to give such notice, including having the effect of tolling or suspending the statute of limitations applicable to such claim. (bii) Any The Indemnifying Party will shall have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at and the Indemnifying Party shall have full control of such defense and proceedings, including any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimcompromise or settlement thereof; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim which provides for or results in any payment by or Obligation of the Indemnified Party of or for any damages or other amount, any Encumbrance on any property of the Indemnified Party, any finding of responsibility or liability on the part of the Indemnified Party or any sanction or injunction of, restriction upon the conduct of any business by, or other equitable relief upon the Indemnified Party without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably). (iii) unless Unless and until the judgment or proposed settlement involves only Indemnifying Party assumes the payment of money damages by one or more defense of the Indemnifying Parties and does not impose an injunction or other equitable relief upon Third Party Claim as provided in Section 8(d)(ii), the Indemnified Party and may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iiiv) In no event shall the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld)withheld unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 6 contracts

Samples: Purchase and Sale Agreement (Markwest Hydrocarbon Inc), Purchase and Sale Agreement (Markwest Hydrocarbon Inc), Purchase and Sale Agreement (Markwest Hydrocarbon Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that may give rise to a right to claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISection 8.2 or Section 8.3, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any The Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (c) Unless and until the Indemnifying Party and (ii) assumes the defense of the Third Party Claim as provided in subsection 8.4(b), the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (d) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld)withheld unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 6 contracts

Samples: Purchase and Sale Agreement (Alpha Natural Resources, Inc.), Purchase and Sale Agreement (Natural Resource Partners Lp), Purchase and Sale Agreement (Alpha Natural Resources, Inc.)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XI§8, then the Indemnified Party shall promptly (and in any event within five (5) business days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld) unless , conditioned or delayed if the applicable judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party). (iii) Unless and until an Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in §8(d)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 5 contracts

Samples: Stock Purchase Agreement (Ariel Way Inc), Stock Purchase Agreement (Ariel Way Inc), Stock Purchase Agreement (Netfran Development Corp)

Matters Involving Third Parties. (ai) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI§8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. If the contents and delivery of the notice from the Indemnified Party to the Indemnifying Parties satisfy the content and delivery requirements of an Indemnification Demand (as defined in §8(e)) pursuant to §8(e), then such notice shall also be deemed to be an Indemnification Demand. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve his or its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b§8(d)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (div) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b§8(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner he or it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in, and subject to the limitations of, this §8. In the event Buyer elects to assert a demand for an adjustment to the Preliminary Purchase Price in connection with a claim for indemnification with respect to third party claims for which the procedures set forth in this Article XI§8(d) have been followed, Buyer shall comply with the procedures set forth in §8(e), §8(f) and §8(g) hereof. Any such procedures shall be in addition to and not in lieu of the indemnification procedures set forth in this §8(d).

Appears in 5 contracts

Samples: Stock Purchase Agreement (Caneum Inc), Stock Purchase Agreement (Caneum Inc), Stock for Stock Exchange Agreement (Caneum Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within 5 business days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay failure to provide such notice on the part of the Indemnified Party in notifying any Indemnifying Party a timely basis shall relieve not release the Indemnifying Party from any obligation hereunder unless (and then solely of its obligations under this Section 8 except to the extent) extent the Indemnifying Party is thereby prejudicedmaterially prejudiced by such failure. (bii) Any The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimchoice; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld or delayed) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in Section 8(d)(ii) above, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheldwithheld or delayed). (dv) In the event none that any Party suffers damage or loss in respect of the Indemnifying Parties assumes and conducts the defense of the Third-which it has or makes a valid claim against another Party Claim in accordance with Section 11.3(b) abovefor indemnification, (i) the Indemnified Party may defend against, and consent it must take reasonable steps to the entry of any judgment on mitigate its loss or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIdamage.

Appears in 4 contracts

Samples: Stock Purchase Agreement (Icommerce Group Inc), Stock Purchase Agreement (Icommerce Group Inc), Stock Purchase Agreement (Icommerce Group Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any . (ii) The Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until the Indemnifying Party and (ii) assumes the defense of the Third Party Claim as provided in Section 8(d)(ii), the Indemnified Party will not may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event shall the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld)withheld unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 4 contracts

Samples: Acquisition Agreement, Purchase, Sale and Merger Agreement (El Paso Energy Partners Lp), Purchase and Sale Agreement (El Paso Energy Partners Lp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “Indemnified Party”the "INDEMNIFIED PARTY") with respect to any matter (a “Third-Party Claim”"THIRD PARTY CLAIM") that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”"INDEMNIFYING PARTY") under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within [five business days] after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, howeverHOWEVER, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until an Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in Section 8(c)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner he or it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party (Parties, not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 4 contracts

Samples: Stock and Warrant Purchase Agreement (Pc Quote Inc), Stock and Warrant Purchase Agreement (Pc Quote Inc), Stock and Warrant Purchase Agreement (Pc Quote Inc)

Matters Involving Third Parties. (a) If any third party notifies any shall notify a Seller Indemnified or Buyer Indemnified Party (an “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other Party Seller or Buyer, as the case may be (the "Indemnifying Party") under this Article XI7 or otherwise pursuant to this Agreement, then the Indemnified Party shall promptly (and in any event within ten (10) business days after receiving service of process in a lawsuit, administrative proceeding or arbitration proceeding with respect to the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part . Each of the Indemnified matters described in this Article 7.04(a) shall be referred to in this Agreement as a "Third Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudicedClaim". (b) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon (or constitute an admission of guilt, liability, fault or responsibility for) the Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party and unless (i) the employment thereof has been specifically authorized in writing by the Indemnifying Party or (ii) the Indemnifying Party failed to assume the defense and employ counsel. (c) Unless and until an Indemnifying Party assumes the defense of the Third Party Claim as provided in Article 7.04(b) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate with such reasonable costs and expenses associated therewith to be borne for the account of the Indemnifying Party. (d) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably), unless the Indemnified Party waives indemnification with respect to the Third Party Claim so settled and adjudicated. (de) In the event none The indemnification obligations of the Indemnifying Parties assumes Seller and conducts the defense Buyer, respectively under this Agreement shall include court costs and attorney's fees and expenses and costs of the Third-Party Claim in accordance with Section 11.3(b) aboveinvestigating, (i) the Indemnified Party may defend against, and consent to the entry of preparing or defending any judgment on action or enter into any settlement proceeding with respect to, the Third-to any Third Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIClaim.

Appears in 4 contracts

Samples: Asset Purchase Agreement (Jayhawk Energy, Inc.), Asset Purchase and Sale Agreement (Alamo Energy Corp.), Asset Purchase and Sale Agreement (Harken Energy Corp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party Seller Indemnitee or Buyer Indemnitee, as the case may be (an for purposes of this Section 8(d), the “Indemnified Party”) ), with respect to any matter (a “Third-Third Party Claim”) that may give rise to a claim for indemnification against any other Party the indemnifying party under Section 8(b) or Section 8(c), as applicable (for purposes of this Section 8(d), the “Indemnifying Party”) under this Article XI8, then the Indemnified Party shall promptly (and in any event within five (5) business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on a written notice stating the part amount of the Indemnified Party Adverse Consequences, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in notifying any respect of which such right of indemnification is claimed or arises. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from of any obligation hereunder unless (and then solely liability that it may have to the extent) Indemnified Party, except to the Indemnifying Party extent the defense of such claim is thereby prejudicedprejudiced by the Indemnified Party’s failure to give such notice. (bii) Any The Indemnifying Party will shall have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at and the Indemnifying Party shall have full control of such defense and proceedings, including any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimcompromise or settlement thereof; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim which provides for or results in any payment by or Obligation of the Indemnified Party of or for any damages or other amount, any Encumbrance on any property of the Indemnified Party, any finding of responsibility or liability on the part of the Indemnified Party or any sanction or injunction of, restriction upon the conduct of any business by, or other equitable relief upon the Indemnified Party, without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably). (iii) unless Unless and until the judgment or proposed settlement involves only Indemnifying Party assumes the payment of money damages by one or more defense of the Indemnifying Parties and does not impose an injunction or other equitable relief upon Third Party Claim as provided in Section 8(d)(i), the Indemnified Party and (ii) may defend against the Third Party Claim in any manner it reasonably may deem appropriate; provided, however, that in no event shall the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-any such Third Party Claim without the prior written consent of the Indemnifying Party (Party, which consent shall not to be unreasonably withheld)withheld unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 3 contracts

Samples: Purchase and Sale Agreement (Genesis Energy Lp), Purchase and Sale Agreement (Genesis Energy Lp), Purchase and Sale Agreement (Genesis Energy Lp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party Person entitled to indemnification hereunder (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that may is reasonably expected to give rise to a claim for indemnification against any other Party the General Partner or Subscriber, as applicable (the "Indemnifying Party") under this Article XISection Thirteenth, then the Indemnified Party shall promptly (and in any event within ten Business Days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on . Failure to notify the part of the Indemnified Party in notifying any Indemnifying Party shall not relieve the Indemnifying Party from of any obligation hereunder unless (and then solely liability that it may have to the extent) Indemnified Party, except to the Indemnifying Party extent the defense of such claim is thereby prejudicedmaterially prejudiced by the Indemnified Party's failure to give such notice. (bii) Any The Indemnifying Party will shall have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at and the Indemnifying Party shall have full control of such defense and proceedings, including any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimcompromise or settlement thereof; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim which provides for or results in any payment by or Liability of the Indemnified Party of or for any damages or other amount, any encumbrance on any property of the Indemnified Party, any finding of responsibility or liability on the part of the Indemnified Party or any sanction or injunction of, restriction upon the conduct of any business by, or other equitable relief upon the Indemnified Party without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless ). If the judgment or proposed settlement involves only Indemnifying Party assumes and thereafter conducts the payment of money damages by one or more defense of the Third Party Claim, the Indemnifying Parties Party will not have to pay the cost of counsel of the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to defend or control the defense of any Third Party Claim if (I) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or in the case of any non-criminal Proceeding by a Governmental Body that would reasonably be expected to materially and does not impose adversely affect the operations or conduct of the Partnership; (II) the Third Party Claim seeks an injunction or other equitable relief upon against the Indemnified Party; (III) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party and failed or is failing to vigorously prosecute or defend such Third Party Claim; (iiIV) the Indemnified Party will reasonably believes that the Losses relating to such Third Party Claim could exceed the maximum amount that such Indemnified Party could then be entitled to recover under the applicable provisions of this Section Thirteenth; or (V) the Indemnifying Party does not provide the Indemnified Party with reasonable evidence that the Indemnifying Party has the financial resources to defend such Third Party Claim and to fulfill its indemnification obligations under this Section Thirteenth. (iii) Unless and until the Indemnifying Party assumes the defense of the Third Party Claim as provided in Section, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. After the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party may participate in such defense with counsel of its choosing at the Indemnified Party's expense. (iv) In no event shall the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (Party, which consent shall not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 3 contracts

Samples: Subscription Agreement (Alliance Resource Partners Lp), Subscription Agreement (Alliance Resource Partners Lp), Subscription Agreement (Alliance Resource Partners Lp)

Matters Involving Third Parties. (a) If any third party notifies Person shall notify any Party (an such Party, together with any other Person entitled to indemnification hereunder, the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other Party (such Party, together with any other Party required to provide indemnification hereunder, the “Indemnifying Party”) under this Article XIX, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part failure of the Indemnified Party to provide timely notice shall not result in notifying the forfeiture of any Indemnifying rights of the Indemnified Party shall relieve except to the extent such failure results in the loss or waiver of substantive defenses of the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudicedParty. (b) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that if the Indemnifying Party must elects to assume the defense of a Third-Party Claim: (i) the Indemnifying Party shall diligently conduct the defense and, so long as it diligently conducts the defense, shall not be liable to the Indemnified Party for its fees or expenses subsequently incurred by the Indemnified Party in connection with the defense of the Third-Party Claim actively and diligently thereafter other than reasonable costs of investigation; (ii) the Indemnifying Party shall admit in order to preserve its rights in this regard; and provided further writing that the Indemnified Party is entitled to indemnification under this Agreement for the entirety of any Loss arising, directly or indirectly, from or in connection with the Third-Party Claim, subject to the limits of liability set forth in this Article X; (iii) the Loss that can be reasonably anticipated to be incurred in connection with such Third Party Claim is within the limits of liability set forth in this Article X; (iv) no compromise or settlement of such Third-Party Claim may retain separate cobe effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation by the Indemnified Party of any applicable Laws or any rights of any Person, (B) the Indemnified Party receives a full release of and from any other claims that may be made against the Indemnified Party by the third party bringing the Third-Party Claim, and (C) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (v) the Indemnified Person shall have no liability with respect to any compromise or settlement of such claims effected without its consent. All costs and expenses incurred by the Indemnifying Party in defending such Third Party Claim shall be paid by the Indemnifying Party; provided, however, that (i) counsel at its sole cost for the Indemnified Party is reasonably acceptable to the Indemnifying Party, (ii) the Indemnified Party keeps the Indemnifying Party reasonably informed of the progress of any Third Party Claim including providing copies of notices, pleadings and expense court submissions, and participate (iii) permits counsel for the Indemnifying Party to assist in the defense of the Third-any Third Party Claim. (c) So long as If the Indemnifying Party has assumed does not assume the defense of a Third-Party Claim in the manner provided in Section 10.04(b) or if the Indemnifying Party does not conduct the defense of a Third-Party Claim in the manner provided in Section 10.04(b), the Indemnifying Party shall be bound by any determination resulting from such Third-Party Claim or any compromise or settlement effected by the Indemnified Party (d) Unless and is conducting until an Indemnifying Party assumes the defense of the Third-Party Claim as provided in accordance with Section 11.3(b) above10.04(b), (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) abovehowever, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, against the Third-Party Claim in any manner he, she, or it may reasonably deem appropriate necessary and appropriate. (and the e) Any Indemnified Party need not consult withshall cooperate in all reasonable respects with the Indemnifying Parties and their attorneys in the investigation, or obtain trial and defense of such Third Party Claim and any consent fromappeal arising therefrom and shall furnish such records, any Indemnifying Party information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith) and (ii) . Such cooperation shall include access during normal business hours afforded to the Indemnifying Party and its agents and representatives to records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. The Parties will remain responsible for shall cooperate with each other in any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim notifications to insurers. (f) All indemnification payments under this Article X shall be deemed adjustments to the fullest extent provided in this Article XIPurchase Price.

Appears in 3 contracts

Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Intrexon Corp), Membership Interest Purchase Agreement (Intrexon Corp)

Matters Involving Third Parties. (ai) If any third party notifies any Parent Indemnified Party or any Buyer Indemnified Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party Parent or Buyer (the “Indemnifying Party”) under this Article XI§7, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby actually and materially prejudiced. (bii) Any The Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b§7(d)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement calling for payment by the Indemnifying Party with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld)Party. (div) In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Party Claim in accordance with Section 11.3(b§7(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties Party will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI§7.

Appears in 3 contracts

Samples: Interim Agreement, Interim Agreement (Wolverine World Wide Inc /De/), Separation Agreement (Wolverine World Wide Inc /De/)

Matters Involving Third Parties. (a) If any third party notifies any Party (an the “Indemnified Party”) with respect to of any matter (including any Proceeding by or in respect of such third party) (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writingthereof; provided, however, that no delay on the part failure of the Indemnified Party in notifying any Indemnifying Party to give such prompt notice shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely of its obligations under this Article 8 except to the extentextent (if any) that the Indemnifying Party is thereby prejudiced. (b) shall have been actually materially prejudiced thereby. Any Indemnifying Party will shall have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must and thereafter conduct the defense of the Third-Party Claim actively at its own expense and diligently thereafter in order with counsel reasonably satisfactory to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as Party; provided, that the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the any Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement settlement: (a) involves only the payment of money damages (all of which will be paid by one or more of the Indemnifying Parties and Party); (b) does not impose an injunction or other equitable relief upon the Indemnified Party; (c) does not include the admittance of any fault; (d) involves a dismissal of the underlying claim without prejudice (if applicable); (e) includes a full release by the plaintiff or claimant of all Indemnified Parties from any Liability; and (f) includes a provision whereby the plaintiff or claimant in the matter is prohibited from disclosing publicly any information regarding the Third-Party and Claim or such relief without the Indemnified Party’s prior consent. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of, defend, compromise or settle any such Third-Party Claim in the name of the Indemnified Party if: (i) the Indemnifying Party fails to defend or fails to prosecute the defense within a reasonable time period (not to exceed thirty (30) days from the date the Indemnified Party provides notice of such Third-Party Claim) or withdraws from such defense; (ii) the Indemnified Party will shall have determined in good faith that an actual or potential conflict of interest makes representation of the Indemnifying Party and Indemnified Party by the same counsel or the counsel selected by the Indemnifying Party inappropriate; or (iii) the Third-Party Claim is a criminal Proceeding. If the Indemnified Party has assumed the defense of the Third-Party Claim, the Indemnified Party shall not consent to the entry of any judgment on or enter into any settlement with respect to the such Third-Party Claim without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes . The Indemnified Party and conducts its counsel may participate in the defense of the a Third-Party Claim in accordance with Section 11.3(b) above, (i) even if the Indemnified Indemnifying Party may defend against, chooses to assume and consent to conduct the entry defense of any judgment on or enter into any settlement with respect to, the such Third-Party Claim Claim, but in any manner it may reasonably deem appropriate (and such case the expenses of the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses Party’s additional counsel shall be paid by the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIParty.

Appears in 3 contracts

Samples: Purchase Agreement (LGI Homes, Inc.), Purchase Agreement (LGI Homes, Inc.), Purchase Agreement (LGI Homes, Inc.)

Matters Involving Third Parties. (a) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”) under this Article XI8, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby actually and materially prejudiced. (b) Any The Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b8.4(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Party Claim in accordance with Section 11.3(b8.4(b) above, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties Party will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI8.

Appears in 3 contracts

Samples: Asset Purchase Agreement (Nautilus, Inc.), Asset Purchase Agreement (Nautilus, Inc.), Asset Purchase Agreement (Nautilus, Inc.)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISECTION 8, then the Indemnified Party shall promptly (and in any event within fifteen business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any . (ii) The Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld or delayed unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until the Indemnifying Party and (ii) assumes the defense of the Third Party Claim as provided in SECTION 8(d)(ii), the Indemnified Party will may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) The Indemnified Party may not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be withheld unreasonably; provided that no such consent will be required if the Indemnifying Party has denied in writing its obligations to be unreasonably withheld). (d) In indemnify the event none Indemnified Party hereunder or if the Indemnifying Party has not responded to the Indemnified Party's written request for consent within 10 business days of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIParty's receipt thereof.

Appears in 3 contracts

Samples: Contribution Agreement (Valero L P), Contribution Agreement (Valero L P), Contribution Agreement (Valero L P)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any . (ii) The Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at and the Indemnifying Party shall have full control of such defense and proceedings, including any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimcompromise or settlement thereof; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim which provides for or results in any payment by or Obligation of the Indemnified Party of or for any damages or other amount, any Encumbrance on any property of the Indemnified Party, any finding of responsibility or liability on the part of the Indemnified Party or any sanction or injunction of, restriction upon the conduct of any business by, or other equitable relief upon the Indemnified Party without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably). (iii) unless Unless and until the judgment or proposed settlement involves only Indemnifying Party assumes the payment of money damages by one or more defense of the Indemnifying Parties and does not impose an injunction or other equitable relief upon Third Party Claim as provided in Section 8(d)(ii), the Indemnified Party and may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iiiv) In no event shall the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld)withheld unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Acquisition or Disposition of Assets, Contribution, Purchase and Sale Agreement (El Paso Energy Partners Lp)

Matters Involving Third Parties. (a) If any third party notifies shall notify Purchaser, SkyLynx, or any Party (an “Indemnified Party”) of the Sellers with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”) party under this Article XI10, then the Indemnified party receiving such Third Party Claim shall promptly notify each Indemnifying Party thereof the other parties in writing; provided, however, that no delay on the part of the Indemnified Party notifying party in notifying any Indemnifying Party the other parties shall relieve the Indemnifying Party such party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party indemnifying party is thereby prejudiced. (b) Any Indemnifying Party Purchaser and SkyLynx will have the right to assume the defense of the Third-defend against all Third Party Claim Claims with counsel of its choice reasonably satisfactory to the Indemnified Party at Sellers. If any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; providedSellers is the notifying party, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party such party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense . None of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party parties will not consent to the entry of any judgment on or enter into any settlement with respect which does not include as an unconditional term thereof the giving to the Third-notifying party by the third party of a release of all liability in respect of such Third Party Claim or which seeks an injunction, specific performance, or a declaration of rights or other equitable relief that, in the good faith judgment of notifying party, will likely have a material adverse effect on the notifying party's operations without the prior written consent of the Indemnified Party notifying party (which shall not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Skylynx Communications Inc), Asset Purchase Agreement (Skylynx Communications Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”) under this Article XI7, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof as provided in writing; §7.5 below, provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) Any The Indemnifying Party will shall have the right to assume the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given written notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b) above§7.5 below, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably withheld) unless if the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party Party) and (ii) the Indemnified Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Third Party Claim in accordance with Section 11.3(b) above§7.5 below, (i) then any failure of the Indemnified Party may to defend againstany such claim, and consent suit, action or proceeding or to cause the entry of any judgment on or enter into any settlement with respect tosame to be done, shall not relieve the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIof its obligations hereunder.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Metalico Inc), Asset Purchase Agreement (Metalico Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “Indemnified Party”) Fields with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) Principal Shareholder under this Article XISection 9, then the Indemnified Party Fields shall promptly notify each Indemnifying Party the Principal Shareholder thereof in writing; provided, however, that no delay on the part of the Indemnified Party Fields in notifying any Indemnifying Party the Principal Shareholder shall relieve the Indemnifying Party Principal Shareholder from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party Principal Shareholder thereby is thereby prejudiced. (bii) Any Indemnifying Party The Principal Shareholder will have the right to assume defend Fields against the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time Fields so long as (A) the Principal Shareholder notifies Fields in writing within 15 days after the Indemnified Party Fields has given notice of the Third-Third Party Claim; provided, however, Claim that the Indemnifying Party must conduct Principal Shareholder will indemnify Fields from and against the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry entirety of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party Adverse Consequences Fields may suffer resulting from, arising out of, relating to, in the nature of, or caused by the ThirdThird Party Claim; (B) the Principal Shareholder provides Fields with evidence acceptable to Fields that the Principal Shareholder will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder; (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief; (D) the settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Fields, likely to establish a precedential custom or practice materially adverse to the continuing business interests of Fields; and (E) the Principal Shareholder conducts the defense of the Third Party Claim actively and diligently. (iii) The party not conducting the defense of the Third Party Claim above may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim; (iv) The party conducting the defense (A) will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the other party (not to be withheld unreasonably); and (B) will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the other party (not to be withheld unreasonably). (v) In the event any of the conditions in Section 9(c)(ii) above is or becomes unsatisfied, however, (A) Fields may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and Fields need not consult with, or obtain any consent from, any Principal Shareholder in connection therewith); (B) the Principal Shareholder will reimburse Fields promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses); and (C) the Principal Shareholder will remain responsible for any Adverse Consequences Fields may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Article XISection 8. . The indemnity payment to Fields by the Principal Shareholder with respect to any claim indemnifified under Sections 9(b)(i) or (ii), but not with respect to any Third Party Claim under Section 9(c) hereof, shall be limited to: (i) any loss or reduction, arising from or by reason of such claim, of amounts the Company paid, distributed, or that would have otherwise been available for the Company's payment or distribution to Fields by reason of its status as a shareholder of the Company, or otherwise, which loss or reduction arises from or by reason of a claim for which the Principal Shareholder is obligated to indemnify Fields pursuant to this Agreement; and (ii) all professional fees (including without limitation attorney's fees) and costs, and out of pocket expenses reasonably incurred by Fields in connection with such claims; and (iii) additional amounts necessary to compensate the Fields for the time cost of money (using the Applicable Rate as the discount rate) in determining the amount of the indemnity payment pursuant to this Section 9(d). . The foregoing indemnification provisions are in addition to, and not in derogation of, any statutory, equitable, or common law remedy Fields may have for breach of representation, warranty, or covenant. The Company and the Principal Shareholder hereby agree that he or it will not make any claim for indemnification against any of the Company and its Subsidiaries by reason of the fact that he or it was a director, officer, employee, or agent of any such entity or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity (whether such claim is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such claim is pursuant to any statute, charter document, bylaw, agreement, or otherwise) with respect to any action, suit, proceeding, complaint, claim, or demand brought by Fields against the Company or the Principal Shareholder (whether such action, suit, proceeding, complaint, claim, or demand is pursuant to this Agreement, applicable law, or otherwise). For purposes of determining the amount of the indemnity payment due from the Principal Shareholder, the term "Fields" in Section 9(d) above shall include Xxx. Xxxxxx' Original Cookies, Inc., a Fields' affiliate ("MFOC"), which entered into that certain Management Agreement of even date with the Company, for purposes of determining any such payable by the Principal Shareholder under this Agreement. . In the event of any claim by Fields under this Section 9, the Fields shall be entitled to exercise rights of offset against any amounts due the Principal Shareholder from the Company in the form of a bonus payable to him in connection with his employment by the Company, or as a dividend by reason of his status as a shareholder of the Company. . No exercise of the rights of offset under Section 9(f) shall be permitted with respect to claims made under this Section 9 unless and until the Adverse Consequences (determined in accordance with Section 9 (d) above) suffered by Fields, in the aggregate for claims asserted under this Section 9, exceeds $100,000; but once such amount is exceeded, Fields may recover the initial $100,000 together with amounts in excess of $100,000.

Appears in 2 contracts

Samples: Stock Acquisition Agreement (Fields MRS Original Cookies Inc), Stock Acquisition Agreement (Fields MRS Original Cookies Inc)

Matters Involving Third Parties. (a) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a the Third-Third Party Claim”) that may give rise to a claim for indemnification against any other Party party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further provided, further, that the Indemnified Party may retain separate co-counsel at its sole cost costs and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b8.4(b) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter entry into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Third Party Claim in accordance with Section 11.3(b8.4(b) above, above (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties Party will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XISection 8.

Appears in 2 contracts

Samples: Purchase Agreement (Tanger Factory Outlet Centers Inc), Purchase Agreement (Tanger Properties LTD Partnership /Nc/)

Matters Involving Third Parties. (a) If any third party notifies any Party (an the “Indemnified Party”) with respect to any of a matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XIARTICLE XII, then the Indemnified Party shall promptly (and in any event within ten (10) Business Days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing, describing the claim in reasonable detail (to the extent then known), the amount thereof (if known and quantifiable) and the basis of the claim; provided, however, that no delay on the part of failure to so promptly notify the Indemnified Party in notifying any Indemnifying Party shall relieve not limit the Indemnifying Party from any obligation hereunder unless (and then solely indemnification obligations under this Agreement except to the extent) extent that the Indemnifying Party is thereby prejudicedmaterially and adversely prejudiced by such failure. (b) Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim, including the MiMedx Litigation, at such Indemnifying Party’s expense, and at its option will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that (x) the Indemnifying Party must conduct acknowledge that it would have an indemnity obligation for Losses resulting from such Third Party Claim as provided under, and subject to the limitations in, this ARTICLE XII and (y) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, except that the Third-fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than as set forth below). Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim actively and diligently thereafter shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the Indemnifying Party does not deliver the acknowledgment referred to in order the previous sentence within 30 days of receipt of notice of the Third Party Claim pursuant to preserve the first sentence of this Section 12.4, (ii) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its rights Affiliates or (iv) the amount of Losses sought pursuant to the Third Party Claim exceeds the Losses for which the Indemnified Party is entitled to indemnification hereunder. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party will not consent to the entry of any judgment, enter into any settlement or issue or permit any public statement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, delayed or conditioned) unless the judgment or proposed settlement involves solely the payment of money damages, does not impose an injunction or other equitable relief upon the Indemnified Party and provides for the express and unconditional release of the Indemnified Party from all liabilities and obligations with respect to such claim with prejudice, in this regardwhich case no consent will be required as to such judgment or settlement; and provided further provided, further, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the . An Indemnified Party (shall not to be unreasonably withheld) unless the judgment settle or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of compromise any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party; provided that such consent shall not be required in the event that such settlement expressly releases the Indemnifying Party from all liabilities and obligations with respect to such claim. The Indemnified Party will cooperate with the Indemnifying Party and its counsel in the review, investigation and defense of any such claim, shall make available its personnel, and shall provide such testimony and access to its books and records as is reasonably requested by the Indemnifying Party in connection therewith. (c) The procedures in this Section 12.4 shall not apply to be unreasonably withheld)direct claims of Indemnified Parties. (d) In Notwithstanding the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating toforgoing, in the nature ofevent of a conflict between this Section 12.4 and Section 9.6, or caused by the Third-Party Claim to the fullest extent provided in this Article XISection 9.6 shall prevail, govern and control.

Appears in 2 contracts

Samples: Merger Agreement, Merger Agreement (Organogenesis Holdings Inc.)

Matters Involving Third Parties. (a) If any third party notifies any Party (an “Indemnified Party”) Except with respect to Taxes, which are covered by Section 4.11, each Person entitled to indemnification under this Article VI (the “Indemnified Person”) shall give notice to the Person required to provide indemnification hereunder (the “Indemnifying Person”) promptly after such Indemnified Person receives written notice of any matter claim, action, suit, proceeding or demand asserted by any Person who is not a party (or a successor to a party) to this Agreement (a “Third-Party Claim”) ), setting forth in reasonable detail the facts and circumstances pertaining thereto and the basis for the Indemnified Person’s right to indemnification; provided that may give rise the failure by an Indemnified Person to a claim for indemnification against so notify the Indemnifying Person shall not relieve any other Party (the “Indemnifying Party”) Person of its obligations under this Article XIVI, then except to the extent that such failure prejudices such Indemnifying Person. Thereafter, in the event that the Indemnifying Person assumes the defense of such Third-Party Claim pursuant to Section 6.04(b), the Indemnified Party Person shall promptly notify each deliver to the Indemnifying Party thereof in writing; provided, however, that no delay on the part Person copies of all notices and documents (including court papers) received by the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely Person relating to the extent) the Indemnifying Third-Party is thereby prejudicedClaim. (b) Any Except with respect to Taxes, which are covered by Section 4.11, the Indemnifying Party Person will have the right to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory choice, at the Indemnifying Person’s sole cost and expense (which assumption must be made by the Indemnifying Person, by notice to the Indemnified Party at any time Person hereto in writing, within 15 thirty (30) days after having been notified by the Indemnified Party has given notice Person of the existence of such Third-Party ClaimClaims); provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party Person will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party Person (not to be unreasonably withheld) , conditioned or delayed), unless the judgment or proposed settlement (1) involves only the payment of money damages against which the Indemnified Person is indemnified by one or more the Indemnifying Person, covers the full amount of the Indemnifying Parties liability in such Third-Party Claim and releases the Indemnified Person and its Affiliates from all Liability or obligation in connection with such Third-Party Claim, (2) does not impose an injunction or other equitable non-monetary relief upon the Indemnified Party Person and (ii3) does not involve a finding or admission of any violation of Law or other wrongdoing by the Indemnified Party will not consent Person. Counsel selected by the Indemnifying Person to the entry of defend any judgment on or enter into any settlement with respect to the such Third-Party Claim without shall be a recognized law firm with the prior written experience and resources to defend the Indemnified Person against any such Third-Party Claim in any such proceeding (and shall be consented to by the Indemnified Person, such consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of . If the Indemnifying Parties Person elects to assume the defense of a Third-Party Claim, (A) the Indemnified Person will cooperate in all reasonable respects with the Indemnifying Person and its attorneys in such defense and (B) the Indemnifying Person will not be liable to the Indemnified Person for legal expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. In any such action or proceeding, the Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless (i) the Indemnifying Person and the Indemnified Person mutually agree to the retention of such counsel, or (ii) the Indemnifying Person and the Indemnified Person have actual or potential differing defenses or conflicts of interests between them that make joint representation inappropriate, then in all such cases of clauses (i) and (ii), the Indemnifying Person shall pay, promptly as statements therefor are received, the reasonable fees and expenses of such counsel for the Indemnified Person. Provided that an Indemnified Person has given the Indemnifying Person notice of a Third-Party Claim as required hereunder, unless an Indemnifying Person assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) aboveClaim, (i) the Indemnified Party Person may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, against the Third-Party Claim in any manner it may reasonably deem appropriate (appropriate, and the Indemnified Party need not consult with, or obtain Indemnifying Person shall be bound by any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the final determination with respect to such Third-Party Claim prior to such assumption; provided, however, that the Indemnified Person may not agree to any settlement without the consent of the Indemnifying Person, which consent will not be unreasonably withheld, conditioned or delayed. Each party shall reasonably cooperate with the other parties by providing records and information on a timely basis that are reasonably relevant to any Third-Party Claim, and shall in good faith regularly consult with counsel for the other parties and include such counsel in relevant conferences and proceedings to the fullest extent provided requested by such counsel. Within ten (10) Business Days of determination of the amount of a Third-Party Claim becoming non-appealable (whether as a result of procedural exhaustion or lapse of time), the Indemnifying Person shall pay to the Indemnified Person an amount equal to the aggregate Losses relating to such Third-Party Claim by wire transfer of immediately available funds to the bank account or accounts designated in writing by the indemnified party not less than one (1) Business Day prior to such payment. (c) Notwithstanding anything to the contrary contained in this Article XIVI, the parties shall cooperate with each other to obtain the benefits of any insurance coverage for Third-Party Claims that may be in effect at the time a Third-Party Claim is asserted, and, if any insurance carrier for Parent, any Affiliate of Seller, Purchaser or the Bank is obligated or agrees to defend any Third-Party Claim, such defense shall be tendered to such insurance carrier and the rights of the parties among themselves regarding the assumption and control of such defense shall be subject to the reasonable requirements of such insurance carrier. Nothing contained herein shall obligate any party to obtain or continue after the Closing any insurance coverage for any period. (d) The amount of any Losses of any Indemnified Person under this Article VI and Section 4.11 shall be reduced by the amount, if any, (1) received by the Indemnified Person from any third Person (including, without limitation, any insurance company or other insurance provider (such amount being referred to herein as a “Third-Party Reimbursement”)), in respect of the Losses suffered thereby and (2) of all net Tax benefits actually realized by the Indemnified Person through a reduction in Taxes otherwise due as a result of such Losses incurred or suffered by the Indemnified Person. If, after receipt by an Indemnified Person of an indemnification payment hereunder, such Person receives a Third-Party Reimbursement in respect of the same Losses (whether in whole or in part) for which indemnification was made and such Third-Party Reimbursement was not taken into account in assessing the amount of indemnification, then the Indemnified Person shall promptly turn over all or the relevant portion of such Third-Party Reimbursement to the Indemnifying Person up to the amount of the indemnification paid pursuant hereto. (e) No Indemnifying Person shall have any liability under this Article VI or Section 4.11 for indirect, speculative, special, incidental, consequential, punitive or similar damages, including lost profits, lost opportunity costs or lost prospective economic advantage (collectively, “Consequential Damages”); provided, however, that this sentence shall not apply to any Losses incurred by an Indemnified Person in a Third-Party Claim that includes claims against the Indemnified Person for Consequential Damages. Any Indemnified Person that becomes aware of a Loss for which it seeks indemnification under this Article VI shall be required to use commercially reasonable efforts to mitigate the Loss, including taking any actions reasonably requested by the Indemnifying Person, and an Indemnifying Person shall not be liable for any Loss to the extent that it is attributable to the Indemnified Person’s failure to mitigate. Parent and its Affiliates shall have no liability for any Loss which would not have arisen but for any change in the accounting policies, practices or procedures adopted by Purchaser or its Affiliates or for any other act or omission by Purchaser or its Affiliates (including the Bank) after the Closing Date.

Appears in 2 contracts

Samples: Stock Purchase Agreement, Stock Purchase Agreement (PNC Financial Services Group Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any the other Party party (the "Indemnifying Party") under this Article XIVI, then the Indemnified Party shall promptly (and in any event, if the matter concerns a legal proceeding, within 15 business days after receiving notice of the Third Party Claim, and with respect to any other matter, within 30 business days) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that that (i) if the Indemnifying Third Party must conduct Claim falls within the defense scope of the Third-Party Claim actively and diligently thereafter indemnification set forth in order to preserve its rights in this regard; and provided further that Section 6.2(d), then the Indemnified Party may retain separate co-counsel at its sole cost shall have the right to refuse to accept such assumption of defense by Indemnifying Party unless and expense and participate in the defense of the Third-Party Claim. (c) So long until such time as the Indemnifying Party has assumed shall provide to the Indemnified Party such assurances of payment and is conducting performance of such indemnification obligation as shall be reasonably satisfactory to the defense of the Third-Party Claim in accordance with Section 11.3(b) above, Indemnified Party; and (iii) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (c) Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in Section 6.4(b) above, however, the Indemnified Party will not may defend against the Third Party Claim in any manner it reasonably may deem appropriate, including, without limitation, consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld)Claim. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Master Establishment and Transition Agreement (Savvis Communications Corp), Master Establishment and Transition Agreement (Savvis Communications Corp)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Indemnified Party of any third party claim, demand, assessment or the commencement of any Litigation (an “Indemnified Party”) with respect to any matter (each, a “Third-Third Party Claim”) which may give rise to a claim for indemnification pursuant to this ‎Article VIII, the Indemnified Party shall promptly (and in any event within ten (10) Business Days after receiving notice of the Third Party Claim or the commencement of Litigation with respect thereto) notify the Indemnifying Party thereof in writing stating that the Third Party Claim may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writingand specifying the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) Any The Indemnifying Party will have the right at any time to assume the defense of against the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days and control the defense of such Third Party Claim so long as the Indemnifying Party conducts such defense in a reasonably diligent manner. (c) From and after the Indemnified Party has given notice of the Third-Party Claim; provided, however, date that the Indemnifying Party must conduct has assumed and is conducting the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that accordance with ‎Section 8.5‎(b), (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in in, but not control, the defense of the Third-Third Party Claim. ; (cii) So long as the Indemnifying Party and the Indemnified Party shall cooperate fully with each other and their respective counsel in connection with the defense, negotiation or settlement of any such Third Party Claim, including providing access to any relevant books and records, properties, employees and Representatives; provided, however, that, for avoidance of doubt, the foregoing shall not require any Party to waive, or take any action which has assumed and is conducting the defense affect of the Thirdwaiving, its attorney-Party Claim in accordance client privilege with Section 11.3(b) above, respect thereto; (iiii) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (which shall not to be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party Party; and (iiiv) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which shall not to be unreasonably withheld, conditioned or delayed). (d) In the event none of that the Indemnifying Parties assumes and conducts Party has not assumed the defense of the Third-Third Party Claim in accordance with Section 11.3(b) aboveafter notice thereof, (i) the Indemnified Party may defend against, and consent to against the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and appropriate; (ii) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) to the extent such costs are Damages for which the Indemnified Party is actually entitled to indemnification hereunder; and (iii) the Indemnifying Party will remain responsible for any Losses costs the Indemnified Party may suffer incur resulting from, arising out of, relating to, in from the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XIsuch costs are Damages for which the Indemnified Party is actually entitled to indemnification hereunder.

Appears in 2 contracts

Samples: Intellectual Property Purchase Agreement (Atlas Therapeutics Corp), Intellectual Property Purchase Agreement (Atlas Therapeutics Corp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party party entitled to be indemnified hereunder (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party the Company or the Investor (the "Indemnifying Party") under this Article XISection 10.4, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b10.4.3(ii) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iv) So long as the Indemnifying Party has assumed and (iiis conducting the defense of the Third Party Claim in accordance with Section 10.4.3(ii) above, the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (dv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b10.4.3(ii) above, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XISection 10.4.

Appears in 2 contracts

Samples: Investment Agreement (Brandywine Realty Trust), Investment Agreement (Five Arrows Realty Securities L L C)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”) under this Article XI§8, then the Indemnified Party shall promptly (and in any event within five (5) business days after receiving notice of the Third-Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably conditioned, delayed, or withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until the Indemnifying Party and (iiassumes the defense of the Third-Party Claim as provided in §8(d)(ii) above, however, the Indemnified Party may defend against the Third-Party Claim in any manner it may reasonably deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably conditioned, delayed, or withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Acquisition Agreement (Nitches Inc), Acquisition Agreement (Nitches Inc)

Matters Involving Third Parties. (ai) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI§5, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. If the contents and delivery of the notice from the Indemnified Party to the Indemnifying Parties satisfy the content and delivery requirements of an Indemnification Demand (as defined in §5(e)) pursuant to §5(e), then such notice shall also be deemed to be an Indemnification Demand. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve his or its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b§5(d)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (div) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b§5(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner he or it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in, and subject to the limitations of, this §5. In the event Buyer elects to assert a demand for an adjustment to the Preliminary Purchase Price in connection with a claim for indemnification with respect to third party claims for which the procedures set forth in this Article XI§5(d) have been followed, Buyer shall comply with the procedures set forth in §5(e), §5(f) and §5(g) hereof. Any such procedures shall be in addition to and not in lieu of the indemnification procedures set forth in this §5(d).

Appears in 2 contracts

Samples: Agreement to Purchase Stock (Caneum Inc), Agreement to Purchase Stock (Caneum Inc)

Matters Involving Third Parties. (ai) If any third party notifies any Party (an “Indemnified Party”) shall notify the Indemnitee with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 9, then the Indemnified Party Indemnitee shall promptly notify each Indemnifying Party the Indemnitor thereof in writing; provided, however, that no delay on the part of the Indemnified Party Indemnitee in notifying any Indemnifying Party the Indemnitor shall relieve the Indemnifying Party Indemnitor from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party Indemnitor thereby is thereby prejudiced. (bii) Any Indemnifying Party The Indemnitor will have the right to assume defend the defense of Indemnitee against the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time Indemnitee so long as (A) it notifies the Indemnitee in writing within 15 days after the Indemnified Party Indemnitee has given notice of the Third-Third Party Claim; provided, however, Claim that the Indemnifying Party must conduct Indemnitor will indemnify the defense of Indemnitee from and against the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry entirety of any judgment on or enter into any settlement with respect to Adverse Consequences the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by the ThirdThird Party Claim, and (B) the Indemnitor conducts the defense of the Third Party Claim actively and diligently. (iii) So long as the Indemnitor is conducting the defense of the Third Party Claim in accordance with Section 9(c)(ii) above, (A) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, provided that the Indemnitor's counsel will be lead counsel, (B) the Indemnitee will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor (not to be withheld unreasonably), and (C) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitee, not to be unreasonably withheld. (iv) In the event any of the conditions in Section 9(c)(ii) above is or becomes unsatisfied, however, (A) the Indemnitee may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it may deem appropriate (and the Indemnitee need not consult with, or obtain any consent from, the Indemnitor in connection therewith), (B) the Indemnitor will reimburse the Indemnitee promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (C) the Indemnitor will remain responsible for any Adverse Consequences the Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Article XISection 9.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Seafield Capital Corp), Stock Purchase Agreement (Response Oncology Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until an Indemnifying Party and (iiassumes the defense of the Third-Party Claim as provided in Section 8(d)(ii) above, however, the Indemnified Party may defend against the Third-Party Claim in any manner it may reasonably deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Polarityte, Inc.), Real Estate Purchase and Sale Agreement (Polarityte, Inc.)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 9, then the Indemnified Party shall promptly (and in any event within five (5) business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on . Failure to notify the part of the Indemnified Party in notifying any Indemnifying Party shall not relieve the Indemnifying Party from of any obligation hereunder unless (and then solely liability that it may have to the extent) Indemnified Party, except to the Indemnifying Party extent the defense of such claim is thereby prejudicedmaterially prejudiced by the Indemnified Party’s failure to give such notice, including having the effect of tolling or suspending the statute of limitations applicable to such claim. (bii) Any The Indemnifying Party will shall have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at and the Indemnifying Party shall have full control of such defense and proceedings, including any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimcompromise or settlement thereof; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim which provides for or results in any payment by or Obligation of the Indemnified Party of or for any damages or other amount, any Encumbrance on any property of the Indemnified Party, any finding of responsibility or liability on the part of the Indemnified Party or any sanction or injunction of, restriction upon the conduct of any business by, or other equitable relief upon the Indemnified Party without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably). (iii) unless Unless and until the judgment or proposed settlement involves only Indemnifying Party assumes the payment of money damages by one or more defense of the Indemnifying Parties and does not impose an injunction or other equitable relief upon Third Party Claim as provided in Section 9(d)(i), the Indemnified Party and may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iiiv) In no event shall the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (Party, which consent shall not to be unreasonably withheld)withheld unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Contribution and Sale Agreement (Genesis Energy Lp), Contribution and Sale Agreement (Genesis Energy Lp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writingwriting (the “Third Party Claim Notice”). (ii) The Indemnifying Party will have the right at any time within 30 days following its receipt of a Third Party Claim Notice to assume and thereafter conduct the defense of the Third Party Claim with counsel of its choice; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only provides solely for the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon and the Indemnified Party receives an unconditional release with respect to such claim or settlement. (iii) Unless and (iiuntil the Indemnifying Party assumes the defense of the Third Party Claim as provided in Section 8(e)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (Solo Cup CO)

Matters Involving Third Parties. (a) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give gives rise to a claim for indemnification against any other another Party (the “Indemnifying Party”) under this Article XIVII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at in any time event within 15 days Business Days after the Indemnified Party has given receiving notice of the Third-Party Claim) notify the Indemnifying Party thereof in writing (a “Notice”); provided, however, that failure to give such Notice shall not limit the right of an Indemnified Party to recover indemnity or reimbursement from any Indemnifying Party except to the extent that such Indemnifying Party suffers any material prejudice or material harm with respect to such claim as a result of such failure except and to the extent that the Indemnifying Party must can demonstrate actual material loss or actual material prejudice (and in any event, solely to the extent of such loss or prejudice) as a result of such failure. For the avoidance of doubt, this Section 7.5 shall not apply with respect to any Tax Contests, which shall be governed solely by Section 6.8(c). (b) In the case of any Third-Party Claims for which indemnification is sought, the Indemnifying Party shall be entitled at its cost and expense to (i) conduct and control any proceedings or negotiations with such third party, (ii) perform and control or direct the defense performance of any required activities, (iii) take all other steps to settle or defend any such claim (provided that the Indemnifying Party shall not settle any such claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless the settlement includes a complete release of the Indemnified Party with respect to the claim and no additional obligation, restriction or Losses shall be imposed on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder) and (iv) employ counsel to contest any such claim or liability; provided, that the Indemnifying Party shall not have the right to assume control of such defense, if the claim for which the Indemnifying Party seeks to assume control: (w) seeks non‑monetary relief (except where non‑monetary relief is merely incidental to a primary claim or claims for monetary damages), (x) involves criminal allegations, (y) is one in which the Indemnifying Party is also a Party and for which joint representation would, in the reasonable opinion of the Indemnified Party’s or Indemnifying Party’s respective counsel, be inappropriate or, in the reasonable opinion of the Indemnified Party’s or Indemnifying Party’s respective counsel, there may be legal defenses available to the Indemnified Party that are materially different from or materially additional to those available to the Indemnifying Party or (z) involves a claim for which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. The Indemnifying Party shall, within 30 days after delivery of the Notice to Indemnifying Party (or sooner, if the nature of the Third-Party Claim actively so requires) (the “Dispute Period”), notify the Indemnified Party of its intention as to the conduct and diligently thereafter in order to preserve its rights in this regard; and control of the defense of such claim, provided further that the Indemnified Party and its counsel shall cooperate with the Indemnifying Party and its counsel. Until the Indemnified Party has received notice of the Indemnifying Party’s election whether to defend any claim, the Indemnified Party shall take commercially reasonable steps to defend (but may retain separate co-counsel at its sole cost and expense and participate in not settle) such claim. If the Indemnifying Party shall decline to assume the defense of the Third-Party Claim. (c) So long as any such claim, or the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent shall fail to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of notify the Indemnified Party (not to be unreasonably withheld) unless within the judgment or proposed settlement involves only the payment of money damages by one or more Dispute Period of the Indemnifying Parties and does not impose an injunction or other equitable relief upon Party’s election to defend such claim, the Indemnified Party and shall defend against such claim (ii) provided that the Indemnified Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim settle such claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld, conditioned or delayed). (d) In the event none of and the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the as a result of such Third-Party Claim to the fullest extent provided in subject to indemnification under this Article XIVII.

Appears in 2 contracts

Samples: Share Purchase Agreement (Ultralife Corp), Share Purchase Agreement (Ultralife Corp)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Buyer Indemnified Party or Seller Indemnified Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that ), which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XIVIII, then the Indemnified Party shall promptly (and in any event within five (5) Business Days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing, describing the claim, the amount thereof (if known and quantifiable) and the basis of the claim; provided, however, that no delay on the part failure of the Indemnified Party in notifying to give any Indemnifying Party notice required under this Section 8.4(a) shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely of its obligations under this Article VIII except to the extent) the , if at all, that such Indemnifying Party is thereby prejudicedshall have been prejudiced thereby. (b) Any Indemnifying Party shall be entitled to participate in the defense of such Third-Party Claim at such Indemnifying Party’s expense, and, upon agreeing in writing that it is obligated to indemnify the Indemnified Party with respect to such Third-Party Claim hereunder, at its option will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that (i) in no event shall the Indemnifying Party must conduct be permitted to assume the defense of the a Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that if (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the reasonably determines that such Third-Party Claim in accordance with Section 11.3(bmay materially and adversely impact the reputation of such Indemnified Party or one of its Affiliates or (B) abovesuch Third-Party Claim involves an Educational Agency or an Educational Approval, and (iii) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) , delayed or conditioned), unless the Indemnifying Party shall (A) pay or cause to be paid all amounts arising out of such settlement or judgment or proposed settlement involves only concurrently with the payment effectiveness of money damages by one or more such settlement, (B) not encumber any of the Indemnifying Parties material assets of any Indemnified Party or agree to any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business and does not impose an injunction (C) obtain, as a condition of any settlement or other equitable relief upon resolution, a complete release of any Indemnified Party potentially affected by such Third-Party Claim, in which case no consent will be required; and provided, further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (ii) it being understood, however, that the Indemnifying Party shall control such defense and shall be liable solely for the costs and expenses of counsel of its choice reasonable satisfactory to the Indemnified Party, except in those instances where counsel selected by the Indemnifying Party will has a conflict of interest (based on the advice of counsel to this effect), in which case then the Indemnifying Party shall pay the expenses of both the Indemnified Party’s counsel and the Indemnifying Party’s counsel). An Indemnified Party shall not consent to the entry of settle or compromise any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, delayed or conditioned). (d) In the event none of the . The Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) shall keep the Indemnified Party may defend againstinformed of all material developments and events relating to such Third Party Claims. The Indemnified Party will cooperate with the Indemnifying Party and its counsel in the review, investigation and defense of any such claim, shall make available its personnel, and consent shall provide such testimony and access to its books and records as is reasonably requested by the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) . If the Indemnifying Parties will remain responsible for any Losses Party does not notify the Indemnified Party may suffer resulting fromin writing within twenty (20) days after the receipt of the Indemnified Party’s written notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, arising out ofthe Indemnified Party shall have the right to contest, relating to, in the nature of, settle or caused by compromise the Third-Party Claim Claim, but shall not thereby waive any right to the fullest extent provided in indemnity therefor pursuant to this Article XIAgreement.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Devry Inc), Asset Purchase Agreement (Devry Inc)

Matters Involving Third Parties. (a) If any third party notifies any shall notify the Indemnified Party (an “Indemnified Party”) with respect as to any matter in respect of which the right to indemnification contained in this Section 9 may be claimed (a “Third-Third Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI), then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve give the Indemnifying Party from any obligation hereunder unless (notice of such Third Party Claim as provided in Section 9.02 above; and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume defend the defense Indemnified Party against the Third Party Claim, consent to the entry of the Third-Party Claim any judgment with respect thereto and enter into any settlement with respect thereto, all with counsel of its choice reasonably satisfactory to choice, so long as the Indemnifying Party notifies the Indemnified Party at any time in writing, within 15 fifteen (15) days after the Indemnified Party has given the Indemnifying Party notice of the Third-Third Party Claim; provided, howeverClaim pursuant to Section 9.02, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that will indemnify the Indemnified Party may retain separate co-counsel at its sole cost from and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses against Indemnifiable Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, of or caused by the Third-Third Party Claim. (b) If the Indemnifying Party undertakes the defense of any Third Party Claim pursuant to Section 9.03(a) above, the Indemnified Party may retain separate co-counsel at its sole cost and expense (and such expenses shall not be Indemnifiable Damages) and participate in the defense of such Third Party Claim. The Indemnified Party will not consent to the fullest extent provided entry of any judgment or enter into any settlement with respect to any Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably). The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim that does not include a full release by the third party of the Indemnified Party from all Indemnifiable Damages relating to such Third Party Claim, without the prior written consent of the Indemnified Party (not to be withheld unreasonably). (c) The parties hereto shall provide, or cause their appropriate employees or representatives to provide, to the other parties hereto information or data in this Article XIconnection with the handling of the defense of any Third Party Claim or litigation (including counterclaims filed by the parties), and the party receiving such information or data shall reimburse the other party for all of its reasonable costs and expenses in providing these services, including, without limitation, (1) all reasonable out-of-pocket, travel and similar expenses incurred by its personnel in rendering these services; and (2) all reasonable fees and expenses for services performed by third parties engaged by or at the request of such other party.

Appears in 2 contracts

Samples: Senior Secured Note Purchase Agreement, Senior Secured Note Purchase Agreement (Platinum Research Organization, Inc.)

Matters Involving Third Parties. (a) 9.5.1. If any third party notifies any Indemnified Party (an “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Indemnifying Party (the “Indemnifying Party”) under this Article XISection 9 (a “Third Party Claim”), then the Indemnified Party shall will promptly notify each in writing the Indemnifying Party thereof of such Third Party Claim (such notification, a “Claim Notice”) describing in writingreasonable detail the basis for such Third Party Claim (including identification of the provisions of this Agreement alleged to have been breached and the amount of Losses incurred or suffered, or expected to be incurred or suffered, with respect thereto) and enclosing copies of any documents then available to the Indemnified Party relating to such Third Party Claim and thereafter provide the Indemnifying Party such documents and information with respect thereto that the Indemnifying Party may reasonably request; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall will relieve the Indemnifying Party from any indemnification obligation hereunder unless (and then solely to the extent) extent that the Indemnifying Party is thereby prejudicedprejudiced thereby. Thereafter, the Indemnified Party will promptly deliver to the Indemnifying Party following receipt thereof, copies of all notices, demands and other documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. This Section 9.5 shall not apply to the conduct of any Tax Proceedings, which shall be exclusively governed by Section 8.7. (b) Any 9.5.2. The Indemnifying Party will have the right to assume control the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimchoice; provided, however, that the Indemnifying Party must shall have no right to assume the conduct or control of a Third-Party Claim (i) if the amount of Losses alleged in such Third Party Claim are reasonably expected to exceed two times the remaining Escrow Funds that are not then subject to the reasonably expected Losses alleged in other pending indemnification claims made in accordance with this Section 9; (ii) that seeks injunctive relief, equitable remedies or other non-monetary remedies; (iii) that includes criminal charges; or (iv) with respect to which the Indemnifying Party is also a defendant and, under applicable principles of legal ethics, in the judgment of counsel to the Indemnified Party, a conflict of interest exists or arises that would prohibit a single counsel from representing both the Indemnifying Party and the Indemnified Party in connection with the defense of such Third Party Claim. Within six (6) months of any election by the Indemnifying Party to assume the conduct or control of a Third Party Claim, such Indemnifying Party shall notify the Indemnified Party whether such Indemnifying Party acknowledges that such Third Party Claim is within the scope of such Indemnifying Party’s indemnification obligations hereunder. In the event that the Indemnifying Party fails to acknowledge such indemnification obligations within such six (6) month period, the Indemnified Party shall have the right to elect to takeover and assume the conduct and control of such Third Party Claim from the Indemnifying Party, subject to Section 9.5.3 below. If the Indemnified Party fails to provide written notice to the Indemnifying Party in accordance with the terms of this Agreement that it so elects to take over and assume the conduct and control of such Third Party Claim within 15 Business Days following the end of such six (6) month period, then the Indemnified Party will be deemed to have waived such right to elect and the Indemnifying Party shall have the right to control the defense of such Third Party Claim. 9.5.3. If the Indemnifying Party is conducting the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that Claim, (a) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim (but not of record, and shall not communicate with the Person asserting the Third Party Claim or its Representatives), (b) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim. (c) So long as , nor take any voluntary action prejudicial to the determination of the Third Party Claim, without the prior written consent of the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (ic) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior unless (i) written consent of agreement is obtained releasing the Indemnified Party subject to the Third Party Claim from all liability thereunder, (not to be unreasonably withheldii) unless the judgment or proposed settlement it involves only the payment of money damages and (iii) the judgment or settlement does not involve any finding or admission of a violation of any Legal Requirement by one or more the Indemnified Party. If the Indemnifying Party is not conducting the defense of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Third Party and (ii) Claim, the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-such Third Party Claim without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned, or delayed). (d) In the event none of the Indemnifying Parties assumes 9.5.4. Each party will, and conducts will cause their respective Affiliates to, reasonably cooperate in the defense or prosecution of the Third-any Third Party Claim in accordance with and, subject to Section 11.3(b) above11.16, (i) the Indemnified Party may defend againstwill furnish or cause to be furnished such records, information and testimony, and consent to the entry of any judgment on attend such conferences, discovery proceedings, hearings, trials or enter into any settlement with respect toappeals, the Third-Party Claim in any manner it as may be reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party requested in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Healthsouth Corp), Stock Purchase Agreement (Healthsouth Corp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XI(S)8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his, her or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b(S)8(d)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (div) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b(S)8(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XI(S)8.

Appears in 2 contracts

Samples: Merger Agreement (Radio One Inc), Merger Agreement (Radio One Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XIss.6, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. Any counsel provided by an insurance company shall be deemed to be satisfactory. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(bss.6(e)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (div) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(bss.6(e)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XIss.6.

Appears in 2 contracts

Samples: Merger Purchase Agreement (Glas-Aire Industries Group LTD), Merger Purchase Agreement (Gheradini Raymond J)

Matters Involving Third Parties. (ai) If any third A party notifies any Party entitled to indemnification hereunder (an the Indemnified Claiming Party”) with respect will give the party obligated to provide such indemnification (the “Indemnifying Party”) prompt notice of any matter claim of a third party (a “Third-Party Claim”) that may give rise as to a claim for which the Claiming Party has the right to demand indemnification against any other Party hereunder (the “Indemnifying PartyInitial Claim Notice) under this Article XI, then ). The failure to promptly give such Initial Claim Notice to the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall will not relieve the Indemnifying Party from of any obligation hereunder liability hereunder, unless (and then solely to the extent) the Indemnifying Party is thereby prejudicedwas prejudiced thereby. (bii) Any Promptly after receiving such Initial Claim Notice, the Indemnifying Party will assume the defense of such Third-Party Claim at its own expense and may settle such Third-Party Claim, but will not, without the written consent of the Claiming Party, agree to (i) any injunctive relief affecting the Claiming Party or any of its Affiliates or (ii) any settlement that would adversely affect the business or operations of the Claiming Party or any of its Affiliates. (iii) The Claiming Party will have the right to assume engage their/its own legal counsel (and other professional advisers) in connection with the defense of such Third-Party Claim, at the Claiming Party’s expense. The Indemnifying Party will keep the Claiming Party fully informed of all matters material to such defense and Third-Party Claim with counsel at all stages thereof, whether or not the Claiming Party is represented by separate legal counsel. (iv) If the Indemnifying Party does not commence a defense within 30 days following receipt of such Initial Claim Notice (or such shorter period, if any, during which a defense must be commenced for the preservation of rights), the Claiming Party may, at its choice reasonably satisfactory option, settle or defend such Third-Party Claim at the expense of the Indemnifying Party. (v) If a judgment or order in favor of such third party is rendered against the Claiming Party or such Third-Party Claim is settled resulting in losses on the part of the Claiming Party, then the amount of such losses incurred by the Claiming Party will be paid by the Indemnifying Party. (vi) Each of the Contributors, STAK and Tornier will, and will cause its Affiliates to, promptly make available to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice other party (and its legal counsel and other professional advisers with a reasonable need to know) all books and records of the such party relating to such defense of such Third-Party Claim; provided, howeversubject to reasonable confidentiality requirements. Each of Contributor, that STAK and Tornier will render to the Indemnifying Party must conduct other parties such assistance as such other parties may reasonably request to ensure the proper and adequate defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the such Third-Party Claim. (cvii) So long as the Indemnifying Party has assumed and is In conducting the any defense of the or dealing with any Third-Party Claim in accordance hereunder, each party will use commercially reasonable efforts to protect and preserve the reputation and goodwill associated with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or each other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld)party. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Contribution Agreement (Tornier B.V.), Contribution Agreement (Tornier B.V.)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on writing (although the part of failure to so notify the Indemnified Party in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) Liability that the Indemnifying Party is thereby prejudicedmay have under this Section 8(d) except to the extent that such failure prejudices the Indemnifying Party). (bii) Any The Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and provides a clear and unconditional release of the Indemnified Party. (iiiii) Unless and until the Indemnifying Party assumes the defense of the Third Party Claim as provided in Subsection 8(d)(ii), the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld)withheld or delayed unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Markwest Hydrocarbon Inc), Purchase and Sale Agreement (Markwest Energy Partners L P)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party party (the "Indemnifying Party") under this Article XIVIII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further further, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b8.4(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party Party, and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b) above8.4(b), however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he, she or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) ), and (ii) the Indemnifying Parties will remain responsible for any Losses adverse consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XI.VIII. ARTICLE

Appears in 2 contracts

Samples: Series B Preferred Stock Purchase Agreement (Williams Controls Inc), Series B Preferred Stock Purchase Agreement (Williams Controls Inc)

Matters Involving Third Parties. (ai) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”) under this Article XISection 7, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby actually and materially prejudiced. (bii) Any The Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 business days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b7(e)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (div) In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Party Claim in accordance with Section 11.3(b7(e)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties Party will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XISection 7.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Natural Alternatives International Inc), Asset Purchase Agreement (Natural Alternatives International Inc)

Matters Involving Third Parties. (aA) If any third party notifies shall notify any Party (an “Indemnified Party”) with respect to Indemnitee about any matter (a “Third-Party "THIRD PARTY Claim") that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) Indemnitor under this Article XISection 8, then the Indemnified Party Indemnitee shall promptly notify each Indemnifying Party thereof the Shareholder Representative in writing; , provided, however, that no delay on the part of the Indemnified Party any Indemnitee in notifying any Indemnifying Party the Shareholder Representative shall relieve the Indemnifying Party Indemnitors from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party Indemnitor is thereby prejudicedprejudiced by the delay. (bB) Any Indemnifying Party The Shareholder Representative will have the right to assume defend the defense of Indemnitee against the Third-Third Party Claim (other than a Third Party Claim in respect of a breach of any representation or warranty under Section 2.9) with counsel of its choice reasonably satisfactory to the Indemnified Party at any time Indemnitee so long as (i) the Shareholder Representative notifies the Indemnitee in writing within 15 days after the Indemnified Party Indemnitee has given notice of the Third-Third Party Claim; provided, however, Claim that the Indemnifying Party must conduct Indemnitor will indemnify the defense of Indemnitee from and against the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry entirety of any judgment on or enter into any settlement with respect to Damages the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by the ThirdThird Party Claim, (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iii) the Indemnitor conducts the defense of the Third Party Claim actively and diligently. (C) So long as Parent reasonably believes the Indemnitor is conducting the defense of the Third Party Claim in accordance with Section 8.4(b) above, (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim and (ii) the Indemnitee will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Shareholder Representative (which consent shall not be unreasonably withheld). (D) If the Indemnitor is not actively and diligently conducting the defense of the Third Party Claim, or in the case of any Third Party Claim in respect of a breach of any representation or warranty under Section 2.9, then (i) the Indemnitee may defend against, and consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim in any manner it may deem reasonable (and the Indemnitee need not consult with, or obtain any consent from, the Shareholder Representative or the Indemnitor in connection therewith), (ii) the Indemnitor will reimburse the Indemnitee promptly and periodically for the costs of defending against the Third Party Claim (including attorney's fees and expenses) and (iii) the Indemnitor will remain responsible for any Damages the Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Article XISection 8.

Appears in 1 contract

Samples: Merger Agreement (Exchange Applications Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Indemnified Party (an “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) Series D Stockholders under this Article XI9, then Acquiror, on behalf of the Indemnified Party Party, shall promptly notify each Indemnifying Party thereof the Stockholder Representative in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party The Stockholder Representative, on behalf of the Series D Stockholders, will have the right to assume the defense of the Third-Third Party Claim with counsel of its choice chosen by the Stockholder Representative reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party Stockholder Representative has assumed and is are conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b) above9.2(b), (iA) the Indemnifying Party Stockholder Representative and the Series D Stockholders will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party Stockholder Representative on behalf of the Series D Stockholders (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts Stockholder Representative does not assume the defense of the Third-Third Party Claim in accordance with Section 11.3(b) above9.2(b), however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult after consultation with, or obtain any and consent from, any Indemnifying Party the Stockholder Representative in connection therewith, which consent shall not to be unreasonably withheld, conditioned or delayed) and (iiB) the Indemnifying Parties Series D Stockholders (by virtue of the Stockholder Representative’s execution of this Agreement on their behalf) will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XI9.

Appears in 1 contract

Samples: Merger Agreement (Ym Biosciences Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Indemnified Party of any third party claim, demand, assessment or the commencement of any Litigation (an “Indemnified Party”) with respect to any matter (each, a “Third-Third Party Claim”) which may give rise to a claim for indemnification pursuant to this Article VIII, the Indemnified Party shall promptly (and in any event within ten (10) Business Days after receiving notice of the Third Party Claim or the commencement of Litigation with respect thereto) notify the Indemnifying Party thereof in writing stating that the Third Party Claim may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writingand specifying the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) Any The Indemnifying Party will have the right at any time to assume the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days and control the defense of such Third Party Claim so long as the Indemnifying Party conducts such defense in a reasonably diligent manner. (c) From and after the Indemnified Party has given notice of the Third-Party Claim; provided, however, date that the Indemnifying Party must conduct has assumed and is conducting the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that accordance with Section 8.5(b), (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in in, but not control, the defense of the Third-Third Party Claim. ; (cii) So long as the Indemnifying Party and the Indemnified Party shall cooperate fully with each other and their respective counsel in connection with the defense, negotiation or settlement of any such Third Party Claim, including providing access to any relevant books and records, properties, employees and Representatives; provided, however, that, for the avoidance of doubt, the foregoing shall not require any Party to waive, or take any action which has assumed and is conducting the defense affect of the Thirdwaiving, its attorney-Party Claim in accordance client privilege with Section 11.3(b) above, respect thereto; (iiii) the Indemnifying Party will not consent to the entry of of, or intentionally permit a default leading to, any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (which shall not to be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only includes as an unconditional term thereof the payment of money damages giving by one the claimant or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon plaintiff to the Indemnified Party of a release from all liability in respect of such claim or litigation; and (iiiv) the Indemnified Party will not consent to the entry of of, or intentionally permit a default leading to, any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which shall not to be unreasonably withheld, conditioned or delayed). (d) In the event none of that the Indemnifying Parties assumes and conducts Party has not assumed the defense of the Third-Third Party Claim in accordance with Section 11.3(b) aboveafter notice thereof, (i) the Indemnified Party may defend against, and consent to against the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and appropriate; (ii) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses actually incurred) to the extent such costs are Damages for which the Indemnified Party is actually entitled to indemnification hereunder; and (iii) the Indemnifying Party will remain responsible for any Losses costs the Indemnified Party may suffer incur resulting from, arising out of, relating to, in from the nature of, or caused by the Third-Third Party Claim to the fullest extent provided such costs are Damages for which the Indemnified Party is actually entitled to indemnification hereunder. (e) Notwithstanding anything to the contrary in this Article XISection 8.5, the Parties agree that from and after Closing, (i) Seller shall assume and control the defense of the Retained Litigation Matters without the need for any written notice to Buyer of such Third Party Claims; and (ii) Newco shall assume and control the defense of the Litigation of the Business other than the Retained Litigation Matters, without the need for any written notice to Seller of such Third Party Claims.

Appears in 1 contract

Samples: Transaction Agreement (Solutia Inc)

Matters Involving Third Parties. Except with respect to Taxes, which are covered by Section 5.16: (a) If In order for any third Indemnitee to make a claim for any indemnification as provided for under this Article VIII in respect of, arising out of, or involving a claim or demand made by any Person not a party notifies any Party (an “Indemnified Party”) with respect to any matter this Agreement or its Affiliates against the Indemnitee (a “Third-Party Claim”) ), such Indemnitee must promptly notify the Person that may give rise is obligated to a claim for provide such indemnification against any other Party (the an “Indemnifying Party”) under this Article XI, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory Claim, but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Indemnitee under Section 8.02(a) or Section 8.02(b), as applicable, except to the extent that the Indemnifying Party at any time within 15 days after is materially and adversely prejudiced by the Indemnified failure to timely give such notice. Thereafter, the Indemnitee shall promptly deliver to the Indemnifying Party has given notice copies of all notices and documents (including court papers) received by Indemnitee relating to the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party must conduct shall have been materially and adversely prejudiced as a result of such failure. (b) If a Third-Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses by giving written notice to the Indemnitee as soon as reasonably practicable (but, in any event, no later than thirty (30) days after the receipt of notice of the Third-Party Claim), to assume and control the defense thereof with counsel selected by the Indemnifying Party who shall be a recognized law firm with reasonably sufficient experience and resources to defend the Indemnitee against any such Third-Party Claim actively in such proceeding; provided, that such counsel is not objected to by the Indemnitee in its reasonable discretion as a result of a conflict of interest. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof (except in the case of a conflict of interest as set forth in Section 8.03(c)). If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and diligently thereafter in order to preserve employ counsel, at its rights in this regard; and provided further own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnified Indemnifying Party shall control such defense, and will use commercially reasonable efforts to cooperate with, and make available such assistance and materials to, the Indemnifying Party as may retain separate cobe reasonably requested by the Indemnifying Party. (c) Notwithstanding anything contained in Section 8.03(b) to the contrary, the Indemnifying Party shall not be entitled to assume and control, and the Indemnitee shall be entitled to have sole control over, the defense or settlement of any Third-Party Claim if: (i) the Indemnifying Party does not provide written notice to the Indemnitee of its election to control the defense of such proceeding within thirty (30) days of the Indemnifying Party’s receipt of notice of such proceeding; (ii) either – (A) such proceeding involves criminal or quasi-criminal allegations, or (B) such proceeding involves a Governmental Entity; or (iii) there exists, in the Indemnitee’s good faith judgment, based on the advice of outside legal counsel, a conflict of interest between the Indemnitee and the Indemnifying Party which, under applicable principles of legal ethics, could reasonably be expected to prohibit a single legal counsel at its sole cost from representing both the Indemnitee and expense the Indemnifying Party in such proceeding. (d) Provided that an Indemnitee has given the Indemnifying Party notice of a Third-Party Claim as required hereunder, unless and participate in until an Indemnifying Party assumes the defense of the Third-Party Claim. (c) So long as , the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party Indemnitee may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, against the Third-Party Claim in any manner it may reasonably deem appropriate (and appropriate; provided, that except as set forth in Section 8.03(c), the Indemnified Party need Indemnitee shall not consult withadmit any liability with respect to, or obtain any consent fromsettle, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting fromcompromise or discharge, arising out of, relating to, in the nature of, or caused by the such Third-Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, delayed, or conditioned). Without the prior written consent of the Indemnitee (which shall not be unreasonably withheld, delayed, or conditioned), the Indemnifying Party shall not settle or compromise any Third-Party Claim or consent to the fullest extent provided entry of any judgment, unless such settlement, compromise, or judgment: (i) involves only the payment of money damages for which the Indemnitee is fully indemnified by the Indemnifying Party and the payment of the claim will be made by the Indemnifying Party in this Article XIfull; (ii) does not impose an injunction or other non-monetary relief upon the Indemnitee; (iii) provides for a full and unconditional release of the Indemnitee from all liability with respect to such Third-Party Claim from each claimant or plaintiff in such Third-Party Claim; and (iv) does not involve a finding or admission of any violation of Law or other wrongdoing by the Indemnitee. In the event that the Indemnifying Party does not timely elect to assume and control the defense of the subject Third-Party Claim, or is not permitted to do so pursuant to Section 8.03(c) above, then the Indemnitee may conduct and control, through counsel of its own choosing, the defense of the subject Third-Party Claim and the Indemnifying Party will use commercially reasonable efforts to cooperate with, and make available such assistance and materials to, the Indemnitee as may be reasonably requested by the Indemnitee.

Appears in 1 contract

Samples: Equity Purchase Agreement (1347 Property Insurance Holdings, Inc.)

Matters Involving Third Parties. (a) 9.5.1. If any third party notifies shall notify any Party party (an “the "Indemnified ----------- Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise ----- ----------------- to a claim for indemnification against any other Party party (the "Indemnifying ------------ Party") under this Article XISection 9.1, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on ----------------- the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) 9.5.2. Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, ----------------- that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further ---------------- that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) 9.5.3. So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b) 9.4.2 above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) 9.5.4. In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b) 9.5.2 above, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XI9.

Appears in 1 contract

Samples: Merger Agreement (Imall Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the Indemnified Party) with respect to any matter (a “Third-Third Party Claim) that which may give rise to a claim for indemnification against any the other Party (the Indemnifying Party) under this Article XIsection 10, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 30 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(bsection 10(d)(ii) above, (iA) the Indemnifying 61 66 Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (div) In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Third Party Claim in accordance with Section 11.3(bsection 10(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties Party will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XIsection 10.

Appears in 1 contract

Samples: Equity Purchase Agreement (Penton Media Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any The Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b8(d)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (div) In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Third Party Claim in accordance with Section 11.3(b8(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties Party will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XISection 8.

Appears in 1 contract

Samples: Stock Purchase Agreement (Commonwealth Biotechnologies Inc)

Matters Involving Third Parties. (a) If any third party notifies any Party (an the “Indemnified Party”) with respect to any of a matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under ARTICLE VII or this Article XIARTICLE X, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing, describing the claim, the amount thereof (if known and quantifiable) and the basis of the claim; provided, however, that no delay on the part of failure to so notify the Indemnified Party in notifying any Indemnifying Party shall relieve not limit the Indemnifying Party from any obligation hereunder unless (and then solely indemnification obligations under this Agreement except to the extent) extent that the Indemnifying Party is thereby prejudicedprejudiced by such failure. (b) Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and at its option will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct will not consent to the defense entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Third-Indemnified Party Claim actively and diligently thereafter in order to preserve its rights in this regard(which consent shall not be unreasonably withheld, conditioned or delayed); and provided further provided, further, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume control of the defense against a Third Party Claim if (1) the claim for indemnification relates to or arises in connection with any criminal Proceeding, action, indictment, allegation or investigation; (2) the claim seeks an injunction, specific performance or any other equitable or non-monetary relief against the Indemnified Party; (3) the Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be materially detrimental to or materially injure the Indemnified Party’s reputation or future business prospects; (4) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (5) the Indemnifying Party fails to prosecute or defend such claim in a commercially reasonable manner; or (6) the claim for indemnification relates to or arises in connection with a breach of any of the representations and warranties of the Company or any Securityholder contained in this Agreement, the Losses sought are less than the Deductible or exceed the Cap, and the claim does not relate to a breach of a Fundamental Representations or allegation of Fraud. (c) So long Notwithstanding anything in this Agreement to the contrary, as promptly as reasonably practicable following receipt by Buyer of (A) notice of a Third Party Claim, each Party shall, and Buyer shall cause the Indemnifying Party has assumed Surviving Corporation to, retain documents that are then within such Person’s possession or control and is conducting the defense of the Third-reasonably related to such Third Party Claim for a period of time that the Parties reasonably determines, in accordance consultation with Section 11.3(b) aboveeach other, (i) the Indemnifying Party will not consent after taking into account all relevant facts and circumstances related to the entry Third Party Claim that is the subject of such notice, or (B) a written notice by the Representative of a demand or inquiry by a Governmental Authority, or subpoena or other legal process served by any judgment on or enter into any settlement with respect Person, relating to the Third-Company, each Party Claim without shall, and Buyer shall cause the prior written consent of the Indemnified Party (not Surviving Corporation to, retain documents that are then within such Person’s possession or control and reasonably related to be unreasonably withheld) unless the judgment such information, demand or proposed settlement involves only the payment of money damages by one inquiry or more of the Indemnifying Parties and does not impose an injunction such subpoena or other equitable relief upon legal process for the Indemnified Party time period that the Parties reasonably determine, in consultation with each other, after taking into account all relevant facts and (ii) the Indemnified Party will not consent circumstances related to the entry of any judgment on such information, demand or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld)inquiry. (d) In the event none of If the Indemnifying Parties Party assumes and conducts the defense of the Third-a Third Party Claim in accordance with Section 11.3(b) above, (i) and the indemnifiable Losses previously incurred or suffered by the Indemnified Party may defend againstdo not, and consent to in the entry of any judgment on or enter into any settlement with respect toaggregate, exceed the Third-Party Claim in any manner it may reasonably deem appropriate (and Deductible, then the Indemnified Party need not consult withshall promptly, or obtain and in any consent fromevent within thirty (30) Business Days of receipt of a written request from the Indemnifying Party that includes reasonable supporting documentation, any reimburse the Indemnifying Party for the reasonable out-of-pocket expenses incurred by the Indemnifying Party in connection therewith) and (ii) with the Indemnifying Parties will remain responsible for defense of such Third Party Claim; provided, however, that any such amounts that are reimbursed pursuant to this sentence shall constitute Losses of the Indemnified Party may suffer resulting fromand shall thereafter count against the Deductible for the purposes of determining indemnifiable Losses in excess of the Deductible pursuant to Section 10.02(c). (e) Notwithstanding anything to the contrary set forth herein, arising out of, relating the Representative and the Securityholders acknowledge and agree that the provisions hereof dealing with Third Party Claims shall be subject to the terms and conditions of the R&W Policy and the rights of the insurer thereunder to, in the nature ofamong other things, or caused by the Third-Party Claim consent to the fullest extent provided in this Article XIany settlement thereof.

Appears in 1 contract

Samples: Merger Agreement (Resolute Forest Products Inc.)

Matters Involving Third Parties. (ai) If any third party notifies any shall notify either Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any the other Party (the "Indemnifying Party") under this Article XISection 7, then the Indemnified Party shall promptly (and in any event within ten business days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of . (ii) Upon written notice to the Indemnified Party in notifying any Indemnifying Party shall relieve meeting the Indemnifying Party from any obligation hereunder unless requirements of this paragraph (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any ii), an Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimchoice; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and Party. The notice required by this paragraph (ii) shall contain the certification by the Indemnifying Party to the effect that he or it will indemnify, defend and hold harmless the Indemnified Party from all damages, costs and expenses incurred by the Indemnified Party with respect to the Third Party Claim. (iii) Unless and until an Indemnifying Party assumes the defense of the Third Party Claim as provided in Section 7(d)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner he or it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheldwithheld unreasonably). , unless an Indemnifying Party has not given the notice required by Section 7(d)(ii), above, on the earlier of (dA) In thirty (30) days following the event none delivery of notice of the Third Party Claim to the Indemnifying Parties assumes and conducts or (B) the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) time at which the Indemnified Party may defend against, and consent consents to the entry of any judgment on or enter enters into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIThird Party Claim.

Appears in 1 contract

Samples: Stock Purchase Agreement (Aris Corp/)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Indemnified Party (an “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other an Indemnifying Party (the “Indemnifying Party”) under this Article XISection 6, then the Indemnified Party shall promptly (and in any event within twenty (20) business days after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party . Failure to so timely notify shall not relieve the Indemnifying Party from any obligation its obligations hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudicedactually materially prejudiced as a result thereof. (bii) Any Indemnifying Party will have the right at any time within twenty (20) business days of being notified by the Indemnified Party of such Third-Party Claim to assume and thereafter conduct the defense of the Third-Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party at any time within 15 days after has unconditionally acknowledged to the Indemnified Party has given notice in writing its obligation to indemnify the Persons to be so indemnified hereunder to the extent of any Loss in connection with such Third Party Claim and to discharge any Losses incurred or to be incurred by the Third-Indemnified Party Claim; with respect to such Third Party Claim provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, delayed or conditioned) unless the judgment or proposed settlement involves only the payment of money damages in an amount less than the limitations, if any, provided under Section 6(d) with respect to the Indemnifying Party’s indemnification obligations under this Section 6, does not involve any admission of fault or violation of Law by one or more on behalf of the Indemnifying Parties Indemnified Party, and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until an Indemnifying Party and (ii) completely assumes the defense of the Third-Party Claim as provided in Section 6(f)(ii), however, or if the Indemnifying Party fails to diligently conduct the defense of such Third-Party Claim, the Indemnified Party may defend against the Third-Party Claim in any manner it may reasonably deem appropriate, with the Indemnifying Party responsible for all reasonable costs incurred in connection therewith (including reasonable fees and expenses of counsel). (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheld, delayed or conditioned). (dv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent Notwithstanding anything to the entry contrary herein, this Section 6(f) shall not apply to claims solely in respect of any judgment on or enter into any settlement with respect toTaxes, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused which shall be exclusively governed by the Third-Party Claim to the fullest extent provided in this Article XISection 5.

Appears in 1 contract

Samples: Stock Purchase Agreement (Westell Technologies Inc)

Matters Involving Third Parties. (ai) If any third party notifies will notify any Party (an “the "Indemnified Party") with respect to any matter (a "Third-Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISection 8, then the Indemnified Party shall will promptly (and in any event within 10 business days after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until an Indemnifying Party and (iiassumes the defense of the Third-Party Claim as provided in Section 8(d)(ii) above, however, the Indemnified Party may defend against the Third-Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Merger Agreement (Smart Choice Automotive Group Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection, then the Indemnified Party shall promptly (and in any event within five Business Days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (c) Unless and until an Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in Section 13.4(b) above, however, the Indemnified Party may defend against the Third Party Claim in any manner he or it reasonably may deem appropriate. ROANOKE RESTAURANT ASSET PURCHASE AGREEMENT – 21 (d) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Asset Purchase Agreement (Mercer Island Investors Group, Inc.)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “Indemnified Party”the "INDEMNIFIED PARTY") with respect to any matter (a “Third-Party Claim”"THIRD PARTY CLAIM") that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”"INDEMNIFYING PARTY") under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any The Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim Claim, at its expense, with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in subsection 8(d)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld)withheld or delayed. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Purchase and Sale Agreement (LNR Property Corp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XIss.9, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any The Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(bss.9(d)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction any injunctions or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (div) In the event none of that the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Third Party Claim in accordance with Section 11.3(bss.9(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XIss.9.

Appears in 1 contract

Samples: Asset Purchase Agreement (Lason Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Indemnified Party (an “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other an Indemnifying Party (the “Indemnifying Party”) under this Article XISection 6, then the Indemnified Party shall promptly (and in any event within twenty (20) Business Days after receiving notice of the Third-Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on writing which notice must describe the part Third-Party Claim in reasonable detail and shall include copies of all notices and documents received by the Indemnified Party in notifying any to date relating to the Third-Party Claim (other than those notices and documents separately addressed to the Indemnifying Party Party). Failure to so timely notify shall not relieve the Indemnifying Party from any obligation its obligations hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudicedactually materially prejudiced as a result thereof. (bii) Any Indemnifying Party will have the right at any time to participate in the defense of the Third-Party Claim (including any Anti-Assignment Breach Claim) and, if so elected by the Indemnifying Party within twenty (20) Business Days of being notified by the Indemnified Party of such Third-Party Claim (including any Anti-Assignment Breach Claim), to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice selected by the Indemnifying Party that is reasonably satisfactory to the Indemnified Party. Notwithstanding anything contained herein to the contrary, in the event that the Indemnifying Party at any time within 15 days after so elects to assume the Indemnified Party has given notice defense of the a Third-Party Claim; provided, however, the Indemnifying Party shall not be liable to the Indemnified Party for any legal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (except to the extent provided in Section 6(e)(iii) below to the extent that the Indemnifying Party must fails to diligently conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the such Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the ). The Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned, or delayed) unless (i) the judgment or proposed settlement involves only the payment of money damages in an amount less than the Cap and/or the Aggregate Cap, as applicable, with respect to the Indemnifying Party’s indemnification obligations under this Section 6, (ii) does not involve any admission of fault or violation of Law by one or more on behalf of the Indemnifying Parties Indemnified Party, and (iii) does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) (A) Unless and until an Indemnifying Party and assumes the defense of the Third-Party Claim as provided in Section 6(e)(ii), (iiB) if the Indemnifying Party fails to diligently conduct the defense of such Third-Party Claim, or (C) if the Indemnifying Party fails to assume the defense of any Third-Party Claim within twenty (20) Business Days after being notified by the Indemnified Party of such Third-Party Claim, then the Indemnified Party may defend against the Third-Party Claim in any manner it may reasonably deem appropriate, with the Indemnifying Party responsible for all reasonable costs incurred in connection therewith (including reasonable fees and expenses of counsel) to the extent such Third Party Claim relates to a matter for which the Indemnified Party is entitled to be indemnified pursuant to this Section 6 and such costs are otherwise indemnifiable pursuant to the terms of this Section 6 (including after giving effect to the Deductible, Cap and the Aggregate Cap, as applicable). (iv) In no event (including in connection with any Third-Party Claim referenced in Section 6(e)(iii) above) will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheld, conditioned, or delayed). (v) With respect to any Third-Party Claim subject to indemnification under this Section 6, (i) both the Indemnified Party and the Indemnifying Party, as the case may be, shall keep the other Person fully informed in all material respects of the status of such Third-Party Claim and any related proceedings at all stages thereof where such Person is not represented by its own counsel and (ii) the parties agree to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third-Party Claim. (vi) Notwithstanding the above, the Indemnifying Party shall not be entitled to control (but shall be entitled to participate at the Indemnifying Party’s sole cost and expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement, compromise, admission, or acknowledgment of any Third Party Claim by providing written notice to the Indemnifying Party of such determination to control such defense within twenty (20) Business Days following such Third-Party Claim (subject to the proviso set forth in this Section 6(e)(vi) below) to the extent that (a) the Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party; (b) in connection with the Third Party Claim the named parties (including any impleaded parties) to such proceeding include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have been advised by counsel that there are one or more legal or equitable defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party so as to result in a potential material conflict of interest between the Indemnified Party and the Indemnifying Party; (c) the Third Party Claim relates to any criminal proceeding, indictment or allegation with respect to the Indemnified Party; (d) In if, in the case the Indemnified Party is a Buyer Indemnitee, the Third Party Claim involves any Governmental Entity, Material Customer or Material Supplier (excluding any such Third-Party Claim that is an Anti-Assignment Breach Claim); or (e) in the event none of the Indemnifying Parties assumes and conducts the defense of that the Third-Party Claim in accordance with Section 11.3(b) abovewere to be adversely decided, (i) it is likely that the Indemnified Party may defend against, and consent amount of the Losses related to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and which would be indemnifiable by the Indemnifying Party hereunder would be less than the amount of Losses related to the Third-Party Claim which would be borne by the Indemnified Party need not consult with(including through the application of the Deductible, or obtain any consent fromthe Cap and the Aggregate Cap, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses as applicable); provided, however, that the Indemnified Party may suffer resulting frommake no settlement, arising out ofcompromise, relating to, in the nature ofadmission, or caused by the acknowledgment in connection with any such Third-Party Claim to the fullest extent provided that it would give rise to any liability on the part of the Indemnifying Party without the prior written consent of the Indemnifying Party (which consent may not be unreasonably withheld, conditioned, or delayed). (vii) In all events, the insurers under the R&W Policy and their agents and advisors shall be permitted to associate effectively with any Party in this Article XIthe defense of any matter which might reasonably constitute a Loss (as defined in the R&W Policy) in accordance with the terms of the R&W Policy.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Healthstream Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Indemnified Party of any third party claim, demand, assessment or the commencement of any Litigation (an “Indemnified Party”) with respect to any matter (each, a “Third-Third Party Claim”) which may give rise to a claim for indemnification pursuant to this ‎Article VIII, the Indemnified Party shall promptly (and in any event within ten (10) Business Days after receiving notice of the Third Party Claim or the commencement of Litigation with respect thereto) notify the Indemnifying Party thereof in writing stating that the Third Party Claim may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writingand specifying the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. . (b) Any The Indemnifying Party will have the right at any time to assume the defense of against the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days and control the defense of such Third Party Claim so long as the Indemnifying Party conducts such defense in a reasonably diligent manner. 31 (c) From and after the Indemnified Party has given notice of the Third-Party Claim; provided, however, date that the Indemnifying Party must conduct has assumed and is conducting the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that accordance with ‎Section 8.5‎(b), (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in in, but not control, the defense of the Third-Third Party Claim. ; (cii) So long as the Indemnifying Party and the Indemnified Party shall cooperate fully with each other and their respective counsel in connection with the defense, negotiation or settlement of any such Third Party Claim, including providing access to any relevant books and records, properties, employees and Representatives; provided, however, that, for avoidance of doubt, the foregoing shall not require any Party to waive, or take any action which has assumed and is conducting the defense affect of the Thirdwaiving, its attorney-Party Claim in accordance client privilege with Section 11.3(b) above, respect thereto; (iiii) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (which shall not to be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party Party; and (iiiv) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which shall not to be unreasonably withheld, conditioned or delayed). . (d) In the event none of that the Indemnifying Parties assumes and conducts Party has not assumed the defense of the Third-Third Party Claim in accordance with Section 11.3(b) aboveafter notice thereof, (i) the Indemnified Party may defend against, and consent to against the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and appropriate; (ii) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) to the extent such costs are Damages for which the Indemnified Party is actually entitled to indemnification hereunder; and (iii) the Indemnifying Party will remain responsible for any Losses costs the Indemnified Party may suffer incur resulting from, arising out of, relating to, in from the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XIsuch costs are Damages for which the Indemnified Party is actually entitled to indemnification hereunder.

Appears in 1 contract

Samples: Intellectual Property Purchase Agreement

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other Party party (the “Indemnifying Party”) under this Article XIVII, then the Indemnified Party shall promptly (and in any event within ten (10) days after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimchoice; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. Unless and until an Indemnifying Party and (ii) assumes the defense of the Third-Party Claim as provided in this Section 7.3(b), however, the Indemnified Party may defend against the Third-Party Claim in any manner he or it may reasonably deem appropriate. (c) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of each of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) aboveor, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect toas applicable, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIShareholders’ Representative.

Appears in 1 contract

Samples: Stock Purchase Agreement (DecisionPoint Systems, Inc.)

Matters Involving Third Parties. (a) i. If any third party notifies shall notify any Party party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party another party (the “Indemnifying Party”) under this Article XISection 9, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) ii. Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 thirty (30) days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-co- counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) iii. So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b9(d)(ii) above, (i1) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party Party, and (ii2) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) iv. In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Third Party Claim in accordance with Section 11.3(b9(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties Party will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XISection 9.

Appears in 1 contract

Samples: Asset Purchase Agreement (George Risk Industries, Inc.)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI, then the Indemnified Party shall promptly (and in any event within ten (10) Business Days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part . The right of the an Indemnified Party to be indemnified under this Article XI in notifying any Indemnifying respect of a Third Party Claim shall relieve the Indemnifying Party from any obligation hereunder unless (not be adversely affected by a failure to give such written notice unless, and then solely only to the extent) the extent that, an Indemnifying Party is thereby prejudicedprejudiced thereby. (b) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its such Indemnifying Party’s choice reasonably satisfactory to the Indemnified Party; provided, however if the Indemnifying Party at is a Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any time within 15 days after such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Company (provided, that, in such case in no event will the Indemnified Party has given notice consent to the entry of any judgment, enter into any settlement or admit any liability with respect to the Third Party Claim without the prior written consent of each of the Third-Party ClaimIndemnifying Parties (such consent not to be withheld unreasonably), or (y) seeks an injunction or other equitable relief against the Indemnified Party; provided, further, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. If the Indemnifying Party elects to assume the defense of any such Third Party Claim, then: (i) the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party's right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required; (ii) the Indemnified Party shall make available to the Indemnifying Party all non-privileged books, records, and other documents and materials that are under the direct or indirect control of the Indemnified Party or any of the Indemnified Party’s Representatives and that the Indemnifying Party considers necessary or desirable for the defense of such Third Party Claim; (iii) the Indemnified Party shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise, or adjustment relating to, such Third Party Claim; and (iv) the Indemnified Party shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Third Party Claim. (c) If the Indemnifying Party elects not to assume the defense of such Third Party Claim, then the Indemnified Party shall proceed diligently to defend such Third Party Claim with the assistance of counsel reasonably satisfactory to the Indemnifying Party; provided, however, that in no event will not the Indemnified Party consent to the entry of any judgment on or judgment, enter into any settlement or admit any liability with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheldwithheld unreasonably). (d) In . The fees and disbursements of such counsel for the event none Indemnified Party shall be at the expense of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIParty.

Appears in 1 contract

Samples: Stock Purchase Agreement (Lancaster Colony Corp)

Matters Involving Third Parties. (a) If any third party notifies any Party party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give gives rise to a claim for indemnification against any other another Party (the “Indemnifying Party”) under this Article XISection 12, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at in any time event within 15 days ten Business Days after the Indemnified Party has given receiving notice of the Third-Party Claim) notify the Indemnifying Party thereof in writing (a “Notice”); provided, however, that failure to give such Notice shall not limit the right of an Indemnified Party to recover hereunder from any Indemnifying Party except to the extent that the Indemnifying Party’s ability to defend has been materially prejudiced by such failure of the Indemnified Party and solely to the extent of such prejudice. This Section 12.7 shall not apply with respect to any Tax Contests, which shall be governed solely by Section 13.3. (b) Without limiting any rights of the insurer under the R&W Policy, in the case of any Third-Party Claims for which indemnification is sought, the Indemnifying Party must shall be entitled at its cost and expense to (i) conduct and control any proceedings or negotiations with such third party, (ii) perform and control or direct the defense performance of any required activities, (iii) take all other steps to settle or defend any such claim (provided that the Indemnifying Party shall not settle any such claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless the settlement includes a complete release of the Indemnified Party with respect to the claim and no additional obligation, restriction or Damages shall be imposed on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder), and (iv) employ counsel to contest any such claim or liability; provided that the Indemnifying Party shall not have the right to assume control of such defense, if the claim for which the Indemnifying Party seeks to assume control: (A) seeks non-monetary, equitable or injunctive relief (except where such relief is merely incidental to a primary claim or claims for monetary damages), (B) involves criminal allegations, proceedings, indictments or investigations, (C) involves an actual conflict of interest with respect to the Indemnified Party (it being understood that the existence of a dispute as to whether the Indemnified Party is entitled to indemnification under this Agreement shall not constitute grounds for conflict), or (D) involves a claim for which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. The Indemnifying Party shall, within 30 days after delivery of the Notice to Indemnifying Party (or sooner, if the nature of the Third-Party Claim actively so requires) (the “Dispute Period”), notify the Indemnified Party of its intention as to the conduct and diligently thereafter in order to preserve its rights in this regard; and control of the defense of such claim, provided further that the Indemnified Party may retain separate co-and its counsel at shall cooperate with the Indemnifying Party and its sole cost and expense and participate in counsel. Until the defense Indemnified Party has received notice of the Third-Indemnifying Party’s election whether to defend any claim, the Indemnified Party Claim. shall take reasonable steps to defend (cbut may not settle) So long as such claim. Once the Indemnifying Party has assumed made such election, the Indemnified Party shall have the right to participate in (but not control) any such defense and is conducting to employ separate counsel of its choosing at such Indemnified Party’s expense. If the Indemnifying Party shall decline to assume the defense of the Third-Party Claim in accordance with Section 11.3(b) aboveany such claim, (i) or the Indemnifying Party will not consent shall fail to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of notify the Indemnified Party (not to be unreasonably withheld) unless within the judgment or proposed settlement involves only the payment of money damages by one or more Dispute Period of the Indemnifying Parties and does not impose an injunction or other equitable relief upon Party’s election to defend such claim, the Indemnified Party and shall defend against such claim (ii) provided that the Indemnified Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim settle such claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld, conditioned or delayed). (d) In the event none of and the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the as a result of such Third-Party Claim to the fullest extent provided in subject to indemnification under this Article XISection 12.

Appears in 1 contract

Samples: Purchase Agreement (PGT Innovations, Inc.)

Matters Involving Third Parties. (ai) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI§8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve his, her, or its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b§8(d)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (div) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b§8(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner he, her, or it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI§8.

Appears in 1 contract

Samples: Stock Purchase Agreement (Access Plans USA, Inc.)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI§7, then the Indemnified Party shall promptly (and in any event within five (5) Business Days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any Indemnifying Party will have the right at any time to assume and thereafter conduct and control the defense of the Third-Third Party Claim Claim[, at the Indemnifying Party’s expense,] with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party Party; and (iiB) the Indemnified Party may participate in such defense with its own counsel and at its own expense. (iii) Unless and until an Indemnifying Party assumes the defense of the Third Party Claim as provided in §7(d)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. The Indemnified Party may recover from the Indemnifying Party its expenses related to such defense if it is ultimately determined that it is entitled to indemnity for such claim. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or judgment, enter into any settlement or make any payment with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheldwithheld unreasonably), except if the Indemnifying Party fails to defend as provided in §7(d)(ii). The Indemnifying Party may refuse to provide such consent for any reason if it assumes the defense of such Third Party Claim. (dv) In the event none of The assumption by the Indemnifying Parties assumes and conducts Party of the defense of the Third-any Third Party Claim does not constitute a waiver of its right to dispute its obligation to indemnify the Indemnified Party for such Third Party Claim. Any expenses incurred by the Indemnifying Party in the defense of a Third Party Claim may be recovered from the Indemnified Party if it is ultimately resolved by arbitration in accordance with Section 11.3(b§9(o) above, (i) that the Indemnifying Party was not obligated to indemnify the Indemnified Party may defend against, and consent for such Third Party Claim. (vi) The Sellers shall have the right to assume the entry defense of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it notwithstanding that Sellers may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim be required to the fullest extent provided in this Article XIindemnify Buyer pursuant to §7(b)(i)(A).

Appears in 1 contract

Samples: Stock Purchase Agreement (Chiquita Brands International Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party party entitled to be indemnified hereunder (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party the Company or the Investor (the “Indemnifying Party”) under this Article XISection 9.4, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any The Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b9.4.3(ii) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iv) So long as the Indemnifying Party has assumed and (iiis conducting the defense of the Third Party Claim in accordance with Section 9.4.3(ii) above, the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (dv) In the event none of that the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Third Party Claim in accordance with Section 11.3(b9.4.3(ii) above, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties Party will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XISection 9.4.

Appears in 1 contract

Samples: Investment Agreement (Commercial Net Lease Realty Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party party (the “Indemnifying Party”) under this Article XIVIII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further further, that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b8.4(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party Party, and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b) above8.4(b), however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he, she or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) ), and (ii) the Indemnifying Parties will remain responsible for any Losses adverse consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XIVIII.

Appears in 1 contract

Samples: Purchase Agreement (Williams Controls Inc)

Matters Involving Third Parties. (ai) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby is actually and materially prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party at any time by providing written notice to the Indemnified Party within 15 fifteen (15) days after the Indemnified Party has given notice of the Third-Party ClaimClaim to the Indemnifying Party; provided, however, that the Indemnifying Party must shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve his, her, or its rights in this regard; and provided further that to assume the defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim; provided, however, that if the representation of the Indemnified Party and the Indemnifying Party by the same counsel creates a conflict of interest under applicable standards of professional conduct of attorneys or prejudices the prosecution of the defenses available to the Indemnified Party, then the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party. The Indemnified Party may take any actions reasonably necessary to defend such Third Party Claim prior to the time that it receives notice from the Indemnifying Party that it will assume the defense of such Third Party Claim, and the Indemnifying Party shall reimburse the Indemnified Party for any expenses, including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b8(d)(ii) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement (I) involves only the payment of money damages by one or more of the Indemnifying Parties and Parties, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of the Indemnified Party from all liability in respect of such Third Party Claim and (iiIV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, and (B) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (div) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b8(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the such Third-Party Claim in any manner he, her, or it may reasonably deem deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) ), and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XISection 8. (v) If there shall be any conflicts between the provisions of this Section 8(d) and Section 9(f) (relating to Tax contests), the provisions of Section 9(f) shall control with respect to Tax contests.

Appears in 1 contract

Samples: Purchase Agreement (American Financial Group Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XIXII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof thereof, in writingwriting stating the nature and basis of such claims and the amount thereof, to the extent known; provided that (i) if any member of the Globe Group is the Indemnified Party, such member of the Globe Group shall promptly notify the Company Shareholders, and (ii) if any of the Company Shareholders is the Indemnified Party, then such Company Shareholder shall notify the Globe Group; and provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party in accordance with the notice provisions of Sections 14.3 and/or this Section 12.5 shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby materially prejudiced. (b) Any Indemnifying Party will have the right by notifying the Indemnified Party in writing to assume the defense of the Third-Third Party Claim with counsel of his or her or its choice choice, at such Indemnifying Party's sole cost and expense, reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard, and in the event of any Tax proceeding, it shall have furnished to the Indemnified Party such assurance reasonably acceptable to the Indemnified Party regarding its ability to satisfy any indemnification obligation; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b) 12.5 above, , (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (Party, which consent shall not to be withheld unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and Party, and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably); provided, however, in the event of a Tax proceeding, if the resolution of the issues could have the effect of increasing the Tax liabilities of, or attributable to, the Company or Merger Sub in a post-closing Tax period and the Company Shareholders have not agreed to indemnify the Globe Group fully for such increase, the Company Shareholders shall afford the Globe Group the opportunity to control jointly the conduct and resolution of the portion of such Tax proceeding that could have the effect of increasing the Tax liabilities of, or attributable to, the Company or Merger Sub in a post-closing Tax period. If the Globe Group shall decline, in writing, to participate in the control of the conduct of such Tax proceeding, the Company Shareholders shall have the right to control the conduct of such Tax proceeding, provided that the Company Shareholders shall not resolve such Tax proceeding without the Globe Group's written consent, which shall not be unreasonably withheld). (d) In the event that none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b) 12.5 above, , (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and ), and (ii) the Indemnifying Parties will remain responsible for any Losses Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XIXII. (e) Nothing herein shall limit the authority of the Shareholders' Representative to settle the Globe Group Claims arising out of Section 12.2(a) hereof on behalf of the Company Shareholders without the consent of, or notice to, such Company Shareholders, nor shall the Globe be required to give notice of any the Globe Claim to any Person other than the Shareholders' Representative to the extent such the Globe Claim arises out of Section 12.2(a) hereof. With regard to any the Globe Claim arising out of Section 12.2(b) hereof, the Globe shall give notice of such Claim to the affected Company Shareholder or Company Shareholders.

Appears in 1 contract

Samples: Merger Agreement (Theglobe Com Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 7, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part writing (and shall include a copy of the Indemnified Party in notifying any Indemnifying Party notification from the third party), provided that the failure to promptly deliver such notification shall relieve the Indemnifying Party from any obligation of his or its indemnification obligations hereunder unless (and then solely only to the extent) extent that the Indemnifying Party indemnifying party is thereby prejudicedmaterially prejudiced thereby. (bii) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until an Indemnifying Party and (ii) assumes the defense of the Third Party Claim as provided in Section 7(d)(ii), the Indemnified Party may defend against the Third Party Claim in any manner he or it may reasonably deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Stock Purchase Agreement (American Claims Evaluation Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within 5 business days after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing; , provided, however, that no delay any failure on the part of the an Indemnified Party in notifying any to so notify the Indemnifying Party shall relieve not limit any of the Indemnifying Party from any obligation hereunder unless Indemnified Parties’ rights to indemnification under this Section 8 (and then solely except to the extent) extent such failure materially prejudices the Indemnifying Party is thereby prejudiceddefense of such legal proceeding). (bii) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and damages, does not impose an injunction or other equitable relief upon the Indemnified Party, and does not involve an admission of fault, liability, or guilt by any Indemnified Party; provided further, that the Indemnifying Party and (ii) shall allow the Indemnified Party an opportunity to participate in the defense of the Third-Party Claim with its own counsel and at its own expense after the Indemnifying Party assumes the defense of the Third-Party Claim. (iii) Unless and until an Indemnifying Party assumes the defense of the Third-Party Claim as provided in Section 8(d)(ii) above, the Indemnified Party may defend against the Third-Party Claim in any manner he, she, or it may reasonably deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Stock Purchase Agreement (Affordable Residential Communities Inc)

Matters Involving Third Parties. (a) 7.4.1 If any third party notifies any Party (an the “Indemnified Party”) with respect to of any matter (including any Proceeding by or in respect of such third party) (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI7, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writingthereof; provided, however, provided that no delay on the part failure of the Indemnified Party in notifying any Indemnifying Party to give such prompt notice shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely of its obligations under this Article 7 except to the extentextent (if any) that the Indemnifying Party is thereby prejudicedshall have been actually materially prejudiced thereby. (b) 7.4.2 Any Indemnifying Party will shall have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must and thereafter conduct the defense of the Third-Party Claim actively at its own expense and diligently thereafter in order with counsel reasonably satisfactory to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as Party; provided that the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the any Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement settlement: (a) involves only the payment of money damages (all of which will be paid by one or more of the Indemnifying Parties and Party); (b) does not impose an injunction or other equitable relief upon the Indemnified Party; (c) does not include the admittance of any fault; (d) involves a dismissal of the underlying claim without prejudice (if applicable); (e) includes a full release by the plaintiff or claimant of all Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, from any Liability; and (f) includes a provision whereby the plaintiff or claimant in the matter is prohibited from disclosing publicly any information regarding the Third-Party and Claim or such relief without the Indemnified Party’s prior consent. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of, defend, compromise or settle any such Third-Party Claim in the name of the Indemnified Party if: (i) the Indemnifying Party fails to defend or fails to prosecute the defense within a reasonable time period (not to exceed thirty (30) days from the date the Indemnified Party provides notice of such Third-Party Claim) or withdraws from such defense; (ii) the Indemnified Party will shall have determined in good faith that an actual or potential conflict of interest makes representation of the Indemnifying Party and Indemnified Party by the same counsel or the counsel selected by the Indemnifying Party inappropriate; (iii) the Third-Party Claim is a criminal Proceeding; (iv) in the case of a Buyer Indemnified Party, the Third-Party Claim is by a customer or supplier of Buyer or the Indemnified Party reasonably believes an adverse determination (or adverse actions to be taken by or on behalf of the Indemnified Party) with respect to the Third-Party Claim would be detrimental to or injure the reputation of Buyer, Buyer’s Affiliates or any of their respective businesses; or (v) the Third-Party Claim involves a claim of infringement, misuse or misappropriation of any Intellectual Property Rights. If the Indemnified Party has assumed the defense of the Third-Party Claim, the Indemnified Party shall not consent to the entry of any judgment on or enter into any settlement with respect to the such Third-Party Claim without first seeking the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld); provided that the granting of consent by the Indemnifying Party shall not be deemed to constitute an admission by the Indemnifying Party or evidence that any indemnification claim against the Indemnifying Party by the Indemnified Party regarding such Third-Party Claim is valid, and the Indemnifying Party may in its sole discretion reserve and retain all applicable defenses with respect thereto (including the defense that there is no underlying grounds for indemnification with respect to such Third-Party Claim). (d) In 7.4.3 The Indemnified Party and its counsel may participate in the event none defense of a Third-Party Claim even if the Indemnifying Party chooses to assume and conduct the defense of such Third-Party Claim, but in such case the expenses of the Indemnifying Parties assumes and conducts Indemnified Party’s additional counsel shall be paid by the Indemnified Party. 7.4.4 The Party conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) shall keep the Indemnified Party may defend against, and consent to the entry not conducting such defense reasonably apprised of any judgment on or enter into any settlement material developments with respect to, the to such Third-Party Claim in any manner it may reasonably deem appropriate (and shall, upon the Indemnified reasonable request of the other Party, provide the other Party need not consult withwith all material pleadings, or obtain any consent from, any Indemnifying Party in connection therewith) notices and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the communications with respect to such Third-Party Claim to the fullest extent provided in this Article XIthat receipt of such documents does not waive any privilege.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Envestnet, Inc.)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI§9, then the Indemnified Party shall promptly (and in any event within 5 business days after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until an Indemnifying Party and (iiassumes the defense of the Third-Party Claim as provided in §9(d)(ii) above, however, the Indemnified Party may defend against the Third-Party Claim in any manner he, she, or it may reasonably deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Stock Purchase Agreement (Critical Homecare Solutions Holdings, Inc.)

Matters Involving Third Parties. (a) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give gives rise to a claim for indemnification against any other another Party (the “Indemnifying Party”) under this Article XIVII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at in any time event within 15 days Business Days after the Indemnified Party has given receiving notice of the Third-Party Claim) notify the Indemnifying Party thereof in writing (a “Notice”); provided, however, that failure to give such Notice shall not limit the right of an Indemnified Party to recover indemnity or reimbursement from any Indemnifying Party except to the extent that such Indemnifying Party suffers any material prejudice or material harm with respect to such claim as a result of such failure except and to the extent that the Indemnifying Party must can demonstrate actual material loss or actual material prejudice (and in any event, solely to the extent of such loss or prejudice) as a result of such failure. For the avoidance of doubt, this Section 7.6 shall not apply with respect to any Tax Contests, which shall be governed solely by Section 6.4(c). (b) In the case of any Third-Party Claims for which indemnification is sought, the Indemnifying Party shall be entitled at its cost and expense to (i) conduct and control any proceedings or negotiations with such third party, (ii) perform and control or direct the defense performance of any required activities, (iii) take all other steps to settle or defend any such claim (provided that the Indemnifying Party shall not settle any such claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless the settlement includes a complete release of the Indemnified Party with respect to the claim and no additional obligation, restriction or Losses shall be imposed on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder) and (iv) employ counsel to contest any such claim or liability; provided, that the Indemnifying Party shall not have the right to assume control of such defense, if the claim for which the Indemnifying Party seeks to assume control: (w) seeks non-monetary relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages), (x) involves criminal allegations, (y) is one in which the Indemnifying Party is also a Party and for which joint representation would, in the reasonable opinion of the Indemnified Party’s or Indemnifying Party’s respective counsel, be inappropriate or, in the reasonable opinion of the Indemnified Party’s or Indemnifying Party’s respective counsel, there may be legal defenses available to the Indemnified Party that are materially different from or materially additional to those available to the Indemnifying Party or (z) involves a claim for which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. The Indemnifying Party shall, within 30 days after delivery of the Notice to Indemnifying Party (or sooner, if the nature of the Third-Party Claim actively so requires) (the “Dispute Period”), notify the Indemnified Party of its intention as to the conduct and diligently thereafter in order to preserve its rights in this regard; and control of the defense of such claim, provided further that the Indemnified Party and its counsel shall cooperate with the Indemnifying Party and its counsel. Until the Indemnified Party has received notice of the Indemnifying Party’s election whether to defend any claim, the Indemnified Party shall take commercially reasonable steps to defend (but may retain separate co-counsel at its sole cost and expense and participate in not settle) such claim. If the Indemnifying Party shall decline to assume the defense of the Third-Party Claim. (c) So long as any such claim, or the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent shall fail to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of notify the Indemnified Party (not to be unreasonably withheld) unless within the judgment or proposed settlement involves only the payment of money damages by one or more Dispute Period of the Indemnifying Parties and does not impose an injunction or other equitable relief upon Party’s election to defend such claim, the Indemnified Party and shall defend against such claim (ii) provided that the Indemnified Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim settle such claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld, conditioned or delayed). (d) In the event none of and the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the as a result of such Third-Party Claim to the fullest extent provided in subject to indemnification under this Article XIVII. If the Indemnifying Party assumes the defense of any Third-Party Claim in accordance with the provisions of this Section 7.6, then the Indemnifying Party shall be liable for the reasonable fees of one other counsel or any other reasonably incurred expenses with respect to the defense of such Third-Party Claim incurred by Indemnified Party following the assumption of such defense by Indemnifying Party.

Appears in 1 contract

Samples: Stock Purchase Agreement (Ultralife Corp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “Indemnified Party”the "INDEMNIFIED PARTY") with respect to any matter (a “Third-Party Claim”"THIRD PARTY CLAIM") that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”"INDEMNIFYING PARTY") under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any . (ii) The Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at and the Indemnifying Party shall have full control of such defense and proceedings, including any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimcompromise or settlement thereof; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim which provides for or results in any payment by or Obligation of the Indemnified Party of or for any damages or other amount, any Encumbrance on any property of the Indemnified Party, any finding of responsibility or liability on the part of the Indemnified Party or any sanction or injunction of, restriction upon the conduct of any business by, or other equitable relief upon the Indemnified Party without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably). (iii) unless Unless and until the judgment or proposed settlement involves only Indemnifying Party assumes the payment of money damages by one or more defense of the Indemnifying Parties and does not impose an injunction or other equitable relief upon Third Party Claim as provided in Section 8(d)(ii), the Indemnified Party and may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iiiv) In no event shall the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld)withheld unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Enterprise Products Partners L P)

Matters Involving Third Parties. (a) If any third party notifies any Party Seller Indemnitees or Purchaser Indemnitees (an “Indemnified PartyIndemnitee”) with respect entitled to any matter seek indemnification under this Article 6 receives notice of the assertion, commencement or institution of a claim, suit, action or proceeding, or the imposition of a penalty or assessment by a third party that is not an Indemnitee (a “Third-Party Claim”) that ), and the Indemnitee intends to seek indemnification hereunder for such Third-Party Claim, then the Indemnitee shall promptly provide the party against whom such indemnification may give rise to a claim for indemnification against any other Party be sought (the “Indemnifying Party”) under this Article XIwith written notice of such Third-Party Claim (including any written demand, complaint, petition, summons or similar document relating thereto that is then in the Indemnified Indemnitee’s possession), but in any event not later than 30 calendar days after receipt of notice of such Third-Party Claim. Any delay in providing, or the failure to provide such notification, shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on not affect the part right of the Indemnified Party Indemnitee to indemnification hereunder except in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely event that such delay or failure extends past the applicable survival expiration date set forth in Section 6.1, or to the extent) extent that the Indemnifying Party is thereby prejudicedmaterially prejudiced by the delay or failure. (b) Any In connection with any Third-Party Claim, the Indemnifying Party will have may elect, by written notice to the right Indemnitee, to assume and control, at its sole expense, the defense of the any such Third-Party Claim with Claim, and shall, at its sole expense, retain counsel of its choice (reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimIndemnitee) in connection therewith; provided, however, that the Indemnifying Party must conduct will not have such right: (i) unless the Indemnifying Party has acknowledged in writing, within 20 days following the Indemnifying Party’s receipt of notice of the Third Party Claim, to such (c) After the assumption of such defense by the Indemnifying Party, the Indemnifying Party shall not be responsible for the payment of legal fees or expenses incurred thereafter by the Indemnitee (who may, however, continue to participate in, but not control, the defense of the such Third-Party Claim actively with separate counsel and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and own expense and participate other than as provided in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld6.5(b)). (d) In the event none of that the Indemnifying Parties assumes and conducts Party shall assume the defense of the Third- Party Claim, it shall not settle or compromise such Third-Party Claim unless either (i) the Indemnitee gives its prior written consent, which consent shall not be unreasonably conditioned, withheld or delayed, or (ii) the terms of settlement or compromise of such Third-Party Claim provide that the Indemnitee shall have no responsibility for the discharge of any settlement amount and impose no other obligations or duties on the Indemnitee (including any admission of culpability), and the settlement or compromise discharges all claims against the Indemnitee with respect to such Third-Party Claim. The Indemnitee shall cooperate with the defense of any such Third-Party Claim and shall provide such personnel, technical support and access to information as may be reasonably requested by the Indemnifying Party in connection with such defense. (e) If the Indemnifying Party does not or does not have the right to undertake the defense, compromise or settlement of a Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to6.5(b), the Indemnitee will have the right to control the defense or settlement of such Third-Party Claim in any manner it may with counsel of its choosing (reasonably deem appropriate (and satisfactory to the Indemnified Indemnifying Party) but shall not settle or compromise such Third Party need not consult with, or obtain any Claim without the consent from, any of the Indemnifying Party in connection therewith) and (ii) such consent not to be unreasonably withheld, delayed or conditioned). The Indemnifying Party will be entitled to participate in, but not control, the Indemnifying Parties will remain responsible for defense of any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to with separate counsel and at its own expense. The Indemnifying Party shall cooperate with the fullest extent provided in this Article XI.defense of any such Third-Party Claim and shall provide such personnel, technical support and

Appears in 1 contract

Samples: Asset Purchase Agreement (MVB Financial Corp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISECTION 9.1, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; providedPROVIDED, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further PROVIDED FURTHER that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(bSECTION 9.1(D)(II) above, (ia) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party Party, and (iib) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (div) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(bSECTION 9.1(D)(II) above, or the Third Party Claim involves an injunction or other equitable relief, however, (ia) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iib) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XISECTION 9.1.

Appears in 1 contract

Samples: Stock Purchase Agreement (Innovative Valve Technologies Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an the Indemnified PartyIndemnitee”) with respect to any matter (including claims based on indemnity and assumption obligations) (a “Third-Third Party Claim”) that may give rise to a right to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 9.2 or 9.3, then the Indemnified Party Indemnitee shall promptly (and in any event within five (5) Business Days after receiving written notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of failure to give such notice promptly to the Indemnified Party in notifying any Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely liability which it may have to the extent) Indemnitee with respect to such Third Party Claim except to the extent that the Indemnifying Party is thereby prejudicedprejudiced by the failure or delay in the giving of such notice. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly following the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. (b) Any If a Third Party Claim is made, the Indemnifying Party shall be entitled to participate in the defense thereof at the Indemnifying Party’s sole cost and expense. The Indemnifying Party will have the right right, at its sole cost and expense to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimIndemnitee; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party Indemnitee (not to be unreasonably withheldwithheld or delayed unreasonably) unless (i) the Indemnifying Party unconditionally acknowledges and agrees that the Indemnitee is entitled to indemnification under (and subject to the express limitations contained in) this Article IX with respect to such Third Party Claim, (i) the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties only and does not impose an injunction or other equitable relief upon the Indemnified Party Indemnitee and (ii) concurrently with such settlement pays the full amount of the Damages incurred by or attributable to the Indemnitee with respect to such Third Party Claim for which the Indemnitee is entitled to indemnification under (and subject to the express limitations contained in) this Article IX. Notwithstanding the foregoing, the Indemnitee shall have the right to employ separate counsel to represent the Indemnitee if the Indemnitee is advised by outside counsel that a conflict of interest exists that requires the Indemnitee to be represented by separate counsel under the applicable rules of professional responsibility or if the court in which such Third Party Claim is pending determines that a conflict of interest exists such that the Indemnifying Party’s counsel is prohibited by such court or otherwise unable to represent the Indemnitee with respect to such Third Party Claim or if there is one or more defenses that could be asserted by the Indemnitee that could not be asserted by the Indemnifying Party or the Indemnifying Party’s counsel (on the Indemnitee’s behalf), and, in the event the Indemnitee has the right to employ separate counsel for the reasons set forth in this sentence, the reasonable expenses and fees of such separate counsel shall be paid by the Indemnifying Party, subject to the limitations in Section 9.4. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnitees shall cooperate in the defense or prosecution thereof, at the sole cost and expense of the Indemnifying Party. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees and Representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (c) If the Indemnifying Party elects to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof except as otherwise provided in this Section 9.9. Unless and until the Indemnifying Party assumes the defense of the Third Party Claim as provided in this Section 9.9, the Indemnitee may defend against the Third Party Claim in any manner it reasonably may deem appropriate and the reasonable fees and expenses of one outside counsel (and not any fees and expenses allocated to any internal counsel) engaged by the Indemnitee after the Indemnitee shall have given notice of the Third Party Claim as provided above (which outside counsel shall be reasonably acceptable to the Indemnifying Party) in so defending the Third Party Claims shall be paid by Indemnifying Party, subject to the limitations in Section 9.4, if it is determined that the Indemnitee is entitled to indemnification from the Indemnifying Party with respect to such Third Party Claim. The Indemnitee also shall be entitled to participate in any defense of any Third Party Claim at its sole cost and expense, it being understood and agreed that the Indemnifying Party shall control such defense if it elects to do so as provided in Section 9.9(b). (d) Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, in no event will not the Indemnitee admit any liability with respect to, discharge or consent to the entry of any judgment on or enter into any settlement or compromise with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be withheld or delayed unreasonably. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnitee shall agree to be unreasonably withheld)any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, releases the Indemnifying Party completely in connection with such Third Party Claim and does not impose any injunction or other equitable relief upon the Indemnitee. (de) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with This Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent 9.9 is subject to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XISection 9.14.

Appears in 1 contract

Samples: Merger Agreement (Regency Energy Partners LP)

Matters Involving Third Parties. (a) If any third party notifies any Party shall notify an indemnified party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party Seller, Buyer or HSRTW (the "Indemnifying Party") under this Article XI11, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extentextent that) the Indemnifying Party thereby is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate 44 49 co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b11.04(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b11.04(b) above, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XISection 11.04.

Appears in 1 contract

Samples: Stock Purchase and Sale Agreement (Hs Resources Inc)

Matters Involving Third Parties. (a) 8.6.1. If an Indemnified Party receives written notice of any Action that has been or may be brought or asserted by a third party notifies any against such Indemnified Party and that may give rise to a Liability Claim under this Section ‎‎8 (an “Indemnified Party”) with respect to any matter (each, a “Third-Party Claim”) ), such Indemnified Party will, promptly after receipt of notice of any such Third-Party Claim, notify the Company of such Third-Party Claim where the Buyer Indemnified Party is the subject of the Third-Party Claim and notify the Buyer where a Company Indemnified Party is the subject of the Third-Party Claim, in each case by the delivery of a notice regarding the same, which shall be deemed a Claim Notice. The failure of an Indemnified Party to so notify the Indemnifying Party of the commencement of any such Third-Party Claim will not limit any party’s rights or relieve any party from Liability in connection therewith, except to the extent that may give rise such failure materially and adversely affects the ability of the Indemnifying Party to a claim for indemnification against defend its interests in such Third-Party Claim (to the extent such Indemnifying Party has such right under this Agreement). 8.6.2. In the event of any other Third-Party (Claim, the Indemnifying Party”) under this Article XI, then upon written notice to the Indemnified Party, will have the right in its sole discretion to assume and control the defense of any such Third-Party Claim; provided that the Indemnified Party shall promptly notify each Indemnifying Party thereof and its counsel (at the Indemnified Party’s sole expense) may participate in writing; provided, however, that no delay on (but not control the part conduct of) the defense of such Claim unless such participation would adversely affect any privilege of the Indemnified Party in notifying any Indemnifying respect of such Third-Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Claim. The Indemnifying Party will have the right right, in its sole discretion, to settle any Third-Party Claim, but no settlement of any such Third-Party Claim with third party claimants will be determinative of the amount of Losses relating to such matter unless the Indemnified Party consents to such settlement. In the event that the Indemnified Party has consented to any such settlement, the Indemnified Party will have no power or authority to object under any provision of this ‎Section ‎8 to the amount of Losses with respect to such settlement. 8.6.3. If the Indemnifying Party does not elect to control the defense of a Third-Party Claim in accordance with ‎Section 8.6.2, the Indemnified Party will assume control of the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Indemnifying Party. In such event, the Indemnifying Party will be given the opportunity to participate at its own cost in, but not direct or conduct, any time within 15 days after the Indemnified Party has given notice defense of the such Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense unless such participation would adversely affect any privilege of the Indemnified Party in respect of such Third-Party Claim. The Indemnified Party will not settle any such Third-Party Claim actively without the consent of the Indemnifying Party unless such settlement (i) provides solely for the payment of money in an amount that is less than the remaining Escrow Funds that are not subject to any other Liability Claim, (ii) provides for a full release of the Indemnifying Party involved in such Third-Party Claim and diligently thereafter in order (iii) does not involve any admission by any Indemnifying Party of breach, violation or wrongdoing or involve any future covenants of an Indemnifying Party, other than covenants of confidentiality relating to preserve its rights in this regard; and provided further that the Indemnified Party may retain terms of such settlement. 8.6.4. If requested by the Buyer or the Company, as applicable, the other party will enter into a separate co-counsel at its sole cost and expense and participate confidentiality or joint defense agreement prior to participating in the defense of the any Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting 8.6.5. The party controlling the defense of the a Third-Party Claim in accordance with Section 11.3(b) above, will (i) keep the Indemnifying Party will not consent to non-controlling party reasonably advised of the entry status of any judgment on or enter into any settlement with respect to the such Third-Party Claim without and the prior written consent of defense thereof and will consider in good faith recommendations made by the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party non-controlling party with respect thereto and (ii) the Indemnified Party will not consent make available to the entry non-controlling party any documents or materials in its possession or control that may be necessary to understand the defense of any judgment on or enter into any settlement such claim (subject to confidentiality obligations and the protection of the attorney-client privilege). The non-controlling party will furnish the controlling party with such information as it may have with respect to the such Third-Party Claim without (including copies of any summons, complaints or other proceedings which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the prior written consent of same) and will otherwise reasonably cooperate with and assist the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts controlling party in the defense of the such Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIClaim.

Appears in 1 contract

Samples: Asset Purchase Agreement (Nano-X Imaging Ltd.)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party party hereto (an “Indemnified Party”the "INDEMNIFIED PARTY") with respect to any matter (a “Third-Party Claim”"THIRD PARTY CLAIM") that which may give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”"INDEMNIFYING PARTY") under this Article XISection 11, then the Indemnified Party shall promptly notify each Indemnifying (and in any event within 15 business days after receiving notice of the Third Party Claim) provide notice thereof in writing; providedwriting to the Indemnifying Party, however, that no delay on which notice shall describe in reasonable detail the part nature of the Indemnified Third Party in notifying any Indemnifying Party shall relieve Claim, the Indemnifying Party from any obligation hereunder unless (and then solely estimated amount of Adverse Consequences attributable to such claim to the extent) extent feasible and the Indemnifying Party is thereby prejudicedbasis for the Indemnified Party's request for indemnification under this Agreement, and include a copy of any letter, complaint or similar writing received by the Indemnified Party. (b) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, however that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (c) Unless and until an Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in Section 11.3(b) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (d) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheldwithheld unreasonably). (de) The Parties shall make appropriate adjustments (i.e. reductions) for tax benefits and insurance coverage in determining Adverse Consequences for purposes of this Section 11. All indemnification payments received under this Section 11 shall be deemed adjustments to the Purchase Price. In the event none that Seller is required to indemnify the UK Subsidiary pursuant to this Agreement, Seller shall pay such funds directly to Purchaser in satisfaction of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIsuch obligation.

Appears in 1 contract

Samples: Asset Purchase Agreement (Macrovision Corp)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any the other Party (the "Indemnifying Party") under this Article XIss.8, then the Indemnified Party shall promptly (and in any event within ten business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party failure to give timely notice shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely limit a party's right to indemnification only to the extent) the Indemnifying Party is thereby prejudicedextent of any prejudice caused by such delay. (bii) Any The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in ss.8(d)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Asset Purchase and Sale Agreement (Arch Communications Group Inc /De/)

Matters Involving Third Parties. (a) i. If any third party notifies shall notify any Party (an “Indemnified Party”the "INDEMNIFIED PARTY") with respect to any matter (a “Third-Party Claim”"THIRD PARTY CLAIM") that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”"INDEMNIFYING PARTY") under this Article XISection 9, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, PROVIDED that no delay on the part failure of the Indemnified Party in notifying any Indemnifying Party to give notice as provided herein shall not relieve the Indemnifying Party from any obligation hereunder unless (of its obligations under this Section 9, except and then solely only to the extent) extent the Indemnifying Party Party's ability to defend against, mitigate or diminish the amount of such claim is thereby prejudicedmaterially prejudiced by such failure. (b) ii. Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its his or her choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party; PROVIDED, FURTHER, the Indemnified Party shall have the right to employ separate counsel to participate in the defense of any such Third Party Claim or litigation to which the Indemnified Party is a party, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party in connection with the defense of such action, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to take charge of the defense of such action within a reasonable time after notice of the institution of such action, (iii) the Indemnified Party shall have reasonably concluded that there may be material defenses available to it that are different from or additional to those available to the Indemnifying Party or (iv) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party), in any of which events the reasonable fees and expenses of such counsel shall be borne by the Indemnifying Party and paid as incurred. iii. Unless and until an Indemnifying Party assumes the defense of the Third Party Claim as provided in Section 9(e)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner he or she reasonably may deem appropriate. iv. In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Merger Agreement (Labranche & Co Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party party entitled to be indemnified hereunder (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party the Company or the Investor (the "Indemnifying Party") under this Article XISection 10.4, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b10.4.3(ii) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iv) So long as the Indemnifying Party has assumed and (iiis conducting the defense of the Third Party Claim in accordance with Section 10.4.3(ii) above, the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (dv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b10.4.3(ii) above, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may 22 Investment Agreement suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XISection 10.4.

Appears in 1 contract

Samples: Investment Agreement (Five Arrows Realty Securities L L C)

Matters Involving Third Parties. (ai) If any third party notifies any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XISection 8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve his, her, or its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (diii) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b8(d)(ii) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner he, her, or it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XISection 8.

Appears in 1 contract

Samples: Stock Purchase Agreement (Presidential Life Corp)

Matters Involving Third Parties. (a) If any third party notifies any Party (an “the ‘‘Indemnified Party’’) with respect to any matter (a ‘‘Third-Party Claim’’) that may give rise to a claim for indemnification against any the other Party (the ‘‘Indemnifying Party’’) under this Article XISection 9, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby actually and materially prejudiced. (b) Any The Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b9.4(b) above, (iA) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes Party does not assume and conducts conduct the defense of the Third-Party Claim in accordance with Section 11.3(b9.4(b) above, however, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties Party will remain responsible for any Losses liabilities the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIIX.

Appears in 1 contract

Samples: Asset Purchase Agreement (Blue Star Foods Corp.)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XIVIII, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) Any The Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Third Party Claim with counsel of its choice reasonably satisfactory to so long as the Indemnifying Party notifies the Indemnified Party at any time in writing within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, Claim that the Indemnifying Party must conduct will undertake such defense. (c) So long as the Indemnifying Party is conducting the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that Claim, (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. , (cii) So long as the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party has assumed Party, and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (iiii) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In the event none of the Indemnifying Parties assumes and conducts Party fails to conduct the defense of the Third-Third Party Claim in accordance with Section 11.3(b) aboveClaim, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) ), and (ii) the Indemnifying Parties Party will remain responsible for any Losses claims, liabilities, losses, expenses, fees and taxes, including court costs and reasonable attorneys’ fees and expenses the Indemnified Party may suffer incur resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XI4.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Wells Timberland REIT, Inc.)

Matters Involving Third Parties. (a) If any third party notifies any shall notify a BPI Indemnified or KP-XXXX Indemnified Party (an “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other Party BPI or KP-XXXX, as the case may be (the “Indemnifying Party”) under this Article XI4 or otherwise pursuant to this Agreement, then the Indemnified Party Party” (either of a BPI Indemnified or KP-XXXX Indemnified Party) shall promptly (and in any event within ten (10) business days after receiving service of process in a lawsuit, administrative proceeding or arbitration proceeding with respect to the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part . Each of the Indemnified matters described in this Article 4.04(a) shall be referred to in this Agreement as a “Third Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless Claim”. CONTRIBUTION AGREEMENT (and then solely to the extentPage 18 of 29) the Indemnifying Party is thereby prejudiced.BLACKSANDS AP-XXXXX (b) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon (or constitute an admission of guilt, liability, fault or responsibility for) the Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party and unless (i) the employment thereof has been specifically authorized in writing by the Indemnifying Party or (ii) the Indemnifying Party failed to assume the defense and employ counsel. (c) Unless and until an Indemnifying Party assumes the defense of the Third Party Claim as provided in Article 4.04(b) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate with such reasonable costs and expenses associated therewith to be borne for the account of the Indemnifying Party. (d) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably), unless the Indemnified Party waives indemnification with respect to the Third Party Claim so settled and adjudicated. (de) In the event none The indemnification obligations of the Indemnifying Parties assumes BPI and conducts the defense KP-XXXX, respectively under this Agreement shall include court costs and attorney’s fees and expenses and costs of the Third-Party Claim in accordance with Section 11.3(b) aboveinvestigating, (i) the Indemnified Party may defend against, and consent to the entry of preparing or defending any judgment on action or enter into any settlement proceeding with respect to, the Third-to any Third Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIClaim.

Appears in 1 contract

Samples: Contribution Agreement (Blacksands Petroleum, Inc.)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XIss. 9, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (b) Any Subject to ss. 5.4(d), the Indemnifying Party or Parties and the Indemnified Party will have the right to assume jointly control the defense of against the Third-Third Party Claim with counsel of its choice reasonably satisfactory to if the Indemnified Third Party at any time within 15 days after the Indemnified Party has given notice of the ThirdClaim involves only money damages and does not seek an injunction or other non-Party Claimmonetary relief; provided, however, that if in the Indemnifying good faith judgment of the Indemnified Party must conduct the Third Party Claim is likely to involve potential Losses of $5 million or greater, the Indemnified Party shall have the right to determine any matters as to which the parties are unable to agree with respect to the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regardClaim; and provided further provided, further, that neither the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as nor the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party or Parties will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim that would give rise to Liability for or otherwise affect the other party without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed and in the event that no response to any such request for consent to judgment or settlement is received within five business days after receipt by such other party of the notice with respect thereto, such party shall be deemed for all purposes to have consented thereto. In connection with such joint defense of any Third Party Claim pursuant to ss. 9.5(a), the Indemnifying Party or Parties and the Indemnified Party (not agree that they shall regularly consult with each other and cooperate with each other in the defense, compromise or settlement of such Third Party Claim and shall make available to be unreasonably withheld) unless each other and their counsel its books, records and employees whose assistance, testimony or presence is necessary to assist in evaluating and defending any such action, suit or proceeding. With respect to Third Party Claims with respect to which the judgment or proposed settlement involves only parties shall jointly control the payment defense, the Sellers' Litigation Representative is hereby appointed the sole and exclusive representative in connection with the defense of money damages by one or more such Third Party Claim and any indemnification obligations of the Indemnifying Parties and does not impose an injunction Sellers with respect thereto. (c) In the event that the Third Party Claim involves a claim for injunctive or other equitable relief upon relief, the Indemnified Party may retain its own counsel and (ii) defend against the Third Party Claim in any manner it may deem appropriate and the Indemnified Party need not consult with any Indemnifying Party in connection therewith; provided, however, that the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim that would give rise to a Liability for or otherwise affect the Indemnifying Party or Parties without the prior written consent of the Indemnifying Party (or Parties, which consent shall not to be unreasonably withheld). (d) In withheld or delayed and in the event none that no response to any such request for consent to judgment or settlement is received within five business days after receipt by such other party of the notice with respect thereto, the Indemnifying Party or Parties assumes and conducts the defense of the Third-shall be deemed for all purposes to have consented thereto. The Indemnifying Party Claim in accordance with Section 11.3(b) above, (i) or Parties will reimburse the Indemnified Party may defend againstpromptly upon admission or determination of the Indemnified Party's claim for indemnification for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Third Party Claim to the fullest extent provided in this Article XIss. 9.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization and Merger (Be Aerospace Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any the other Party (the "Indemnifying Party") under this Article XISection10 or Section11, then the Indemnified Party shall promptly (and in any event within ten (10) business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing. (b) The Indemnifying Party will have the right within thirty (30) days of receipt of the notice specified in the preceding paragraph to assume and thereafter conduct the defense of the Third Party Claim with counsel of its choice; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (c) Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in Section12(b) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate, and the Indemnifying Party will not cooperate and make available to the Indemnified Party all books and records and such officers, agents and employees as are reasonably necessary and useful in connection with the defense. (d) In no event will the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (Party, which consent shall not to be unreasonably withheld). (d) In the event none of withheld and which consent shall be deemed given if the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim has not replied in accordance with Section 11.3(b) above, (i) writing to the Indemnified Party may defend against, and consent to the entry within fifteen (15) days of notice of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible request for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIsuch consent.

Appears in 1 contract

Samples: Asset Purchase Agreement (Valcor Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “Indemnified Party”the "INDEMNIFIED PARTY") with respect to any matter (a “Third-Party Claim”"THIRD PARTY CLAIM") that which may give rise to a claim for indemnification against any the other Party (the “Indemnifying Party”"INDEMNIFYING PARTY") under this Article XIss.7, then the Indemnified Party shall promptly (and in any event within ten (10) business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any The Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimchoice; providedPROVIDED, howeverHOWEVER, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in ss.7(d)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld)Party. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Units Purchase Agreement (U S Restaurant Properties Master L P)

Matters Involving Third Parties. (ai) If any third party notifies any shall notify a Party (an “Indemnified Party”the "INDEMNIFIED PARTY") with respect to any matter (a “Third-Party Claim”"THIRD PARTY CLAIM") that which may give rise to a claim for indemnification against any other another Party (the “Indemnifying Party”"INDEMNIFYING PARTY") under this Article XISection 9, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party Party's failure to perform in notifying ------------------ accordance with this Section 9(d)(i) shall not reduce any its rights or the Indemnifying Party shall relieve Party's obligations under Section 7, Section 9(b) or Section 9(c) (as the case may be) unless, and only to the extent, the Indemnifying Party from any obligation hereunder unless (has been directly and then solely materially prejudiced by such failure to the extent) the Indemnifying Party is thereby prejudicedperform. (bii) Any The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent ----------------- to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld or delayed unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld)Party. (diii) In the event none of the Unless and until an Indemnifying Parties Party assumes and conducts the defense of the Third-Third Party Claim as provided in accordance with Section 11.3(b9(d)(ii) above, (i) however, the Indemnified Party may defend against, and consent to against the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIappropriate.

Appears in 1 contract

Samples: Asset Purchase Agreement (Telmark LLC)

Matters Involving Third Parties. (ai) If any third party notifies any Party (an “the "Indemnified Party") with respect to any matter (a "Third-Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the an Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from of any obligation of its obligations hereunder unless (and then solely to the extent) extent that the Indemnifying Party is thereby prejudicedirrevocably prejudiced by such delay. The notice shall include a description of the Third-Party Claim and copies of all documents relating to the claim. (bii) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, provided that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement fully releases such Indemnified Party and involves only the payment of money damages that are covered in full by one or more of the Indemnifying Parties indemnity and does not impose an injunction or other equitable relief upon the Indemnified Party and (ii) is subject to confidentiality provisions acceptable to the Indemnified Party (which approval will not be unreasonably withheld by the Indemnified Party). (iii) Unless and until an Indemnifying Party assumes the defense of the Third-Party Claim as provided in Section 8(d)(ii), the Indemnified Party may defend against the Third-Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the each Indemnifying Party (Party, which consent shall not to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Stock Purchase Agreement (Laclede Group Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified ----------- Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise ----- ----------------- to a claim for indemnification against any the other Party (the "Indemnifying ------------ Party") under this Article XISection8, then the Indemnified Party shall promptly (and in ----- any event within ten (10) business days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (bii) Any The Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claimchoice; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the ----------------- entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iii) Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in Section8(d)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not except to be unreasonably withheld). (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) extent that the Indemnified Party may defend against, and consent elects to the entry of any judgment on or enter into any settlement waive its right to indemnification hereunder with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIsuch claim.

Appears in 1 contract

Samples: Stock Purchase Agreement (Valcor Inc)

Matters Involving Third Parties. (ai) If any third party notifies any Party, or any action, claim or proceeding will be brought or asserted against any Party respect of which indemnity may be sought under this §9 (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XI§9, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby actually and materially prejudiced. (bii) Any Indemnifying Party will shall have the right to assume the defense of the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b§9(e)(ii) above, (iA) the Indemnifying Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (iiB) the Indemnified Party will shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (div) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b§9(e)(ii) above, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner he, she, or it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will shall remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI§9.

Appears in 1 contract

Samples: Asset Purchase Agreement (Greenbrier Companies Inc)

Matters Involving Third Parties. (a1) If any third party notifies shall notify any Party (an “Indemnified Party”the "INDEMNIFIED PARTY") with respect to any matter (a “Third-Party Claim”"THIRD PARTY CLAIM") that may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”"INDEMNIFYING PARTY") under this Article XISection 13, then the Indemnified Party shall promptly (and in any event within five (5) Business Days after receiving notice of the Third Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b2) Any The Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (3) Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in subsection 13(e)(ii) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (4) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld)withheld unreasonably. (d) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Midcoast Energy Resources Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Buyer Indemnified Party or Seller Indemnified Party (an the “Indemnified Party”) with respect to any matter (a “Third-Third Party Claim”) that ), which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XIVIII, then the Indemnified Party shall promptly (and in any event within five (5) Business Days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing, describing the claim, the amount thereof (if known and quantifiable) and the basis of the claim; provided, however, that no delay on the part failure of the Indemnified Party in notifying to give any Indemnifying Party notice required under this Section 8.4(a) shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely of its obligations under this Article VIII except to the extent) the , if at all, that such Indemnifying Party is thereby prejudicedshall have been prejudiced thereby. (b) Any Indemnifying Party shall be entitled to participate in the defense of such Third-Party Claim at such Indemnifying Party’s expense, and, upon agreeing in writing that it is obligated to indemnify the Indemnified Party with respect to such Third-Party Claim hereunder, at its option will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that (i) in no event shall the Indemnifying Party must conduct be permitted to assume the defense of the a Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that if (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the reasonably determines that such Third-Party Claim in accordance with Section 11.3(bmay materially and adversely impact the reputation of such Indemnified Party or one of its Affiliates or (B) abovesuch Third-Party Claim involves an Educational Agency or an Educational Approval, and (iii) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) , delayed or conditioned), unless the Indemnifying Party shall (A) pay or cause to be paid all amounts arising out of such settlement or judgment or proposed settlement involves only concurrently with the payment effectiveness of money damages by one or more such settlement, (B) not encumber any of the Indemnifying Parties material assets of any Indemnified Party or agree to any restriction or condition that would apply to or materially adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business and does not impose an injunction (C) obtain, as a condition of any settlement or other equitable relief upon resolution, a complete release of any Indemnified Party potentially affected by such Third-Party Claim, in which case no consent will be required; and provided, further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim (ii) it being understood, however, that the Indemnifying Party shall control such defense and shall be liable solely for the costs and expenses of counsel of its choice reasonable satisfactory to the Indemnified Party, except in those instances where counsel selected by the Indemnifying Party will has a conflict of interest (based on the advice of counsel to this effect), in which case then the Indemnifying Party shall pay the expenses of both the Indemnified Party’s counsel and the Indemnifying Party’s counsel). An Indemnified Party shall not consent to the entry of settle or compromise any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, delayed or conditioned). (d) In the event none of the . The Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) shall keep the Indemnified Party may defend againstinformed of all material developments and events relating to such Third Party Claims. The Indemnified Party will cooperate with the Indemnifying Party and its counsel in the review, investigation and defense of any such claim, shall make available its personnel, and consent shall provide such testimony and access to its books and records as is reasonably requested by the entry of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) . If the Indemnifying Parties will remain responsible for any Losses Party does not notify the Indemnified Party may suffer resulting fromin writing within twenty (20) days after the receipt of the Indemnified Party’s written notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, arising out ofthe Indemnified Party shall have the right to contest, relating to, in the nature of, settle or caused by compromise the Third-Party Claim Claim, but shall not thereby waive any right to the fullest extent provided in indemnity therefor pursuant to this Article XI.Agreement. 42 Section 8.5

Appears in 1 contract

Samples: Asset Purchase Agreement

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Article XISection 8, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third Party Claim) notify each Indemnifying Party thereof in writing; provided, however, that no delay . The failure to give such notice on a timely basis shall not affect the part of indemnification provided herein except to the Indemnified Party in notifying any Indemnifying Party shall relieve extent the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudicedhas actually been prejudiced as a result of such failure. (bii) Any Indemnifying Party will have the right to assume and thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages which are covered in full by one or more of the Indemnifying Parties indemnity and does not impose an injunction or other equitable relief upon the Indemnified Party; provided further, however, with respect to claims for indemnity under Section 8(b)(i) that during the period in which the cumulative amount of the Adverse Consequences for which indemnity is being sought is less than the Aggregate Deductible, the Indemnified Party and (ii) will have the right to assume the defense of a Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnifying Party; provided, however, that the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (diii) In the event none of the Unless and until an Indemnifying Parties Party assumes and conducts the defense of the Third-Third Party Claim as provided in accordance with Section 11.3(b8(d)(ii) above, (i) however, the Indemnified Party may defend against, and against the Third Party Claim in any manner it reasonably may deem appropriate. (iv) In no event will the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to, to the Third-Third Party Claim in any manner it may reasonably deem appropriate (and without the Indemnified Party need not consult with, or obtain any prior written consent from, any Indemnifying Party in connection therewith) and (ii) of the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XIwhich consent shall not be withheld unreasonably.

Appears in 1 contract

Samples: Stock Purchase Agreement (NRG Energy Inc)

Matters Involving Third Parties. (ai) If any third party notifies shall notify any Party party entitled to be indemnified hereunder (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party the Company or the Investor (the "Indemnifying Party") under this Article XISection 10.4, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby prejudiced. (bii) Any Indemnifying Party will have the right to assume the defense of the Third-Third Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Third Party Claim; provided, however, that the Indemnifying Party must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Third Party Claim. (ciii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 11.3(b10.4.3(ii) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (iv) So long as the Indemnifying Party has assumed and (iiis conducting the defense of the Third Party Claim in accordance with Section 10.4.3(ii) above, the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (dv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 11.3(b10.4.3(ii) above, (iA) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, the Third-Third Party Claim in any manner he or it reasonably may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (iiB) the Indemnifying Parties will remain responsible for any Losses Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XI.,

Appears in 1 contract

Samples: Investment Agreement (Pacific Gulf Properties Inc)

Matters Involving Third Parties. (a) If any third party notifies (including any Party governmental agency or authority) shall notify any Buyer Indemnitee or Seller Indemnitee, as the case may be (an “the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party either Buyer or Seller, as the case may be (the "Indemnifying Party") under this Article XI8, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided. The Indemnifying Party shall, however, that no delay on the part within 30 days after receipt of the Indemnified Party notice described in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (Section 8.4(a), assume and then solely to the extent) the Indemnifying Party is thereby prejudiced. (b) Any Indemnifying Party will have the right to assume thereafter conduct the defense of the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice sole expense of the Third-Party ClaimIndemnifying Party; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the defense fees and expenses of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed such counsel shall be borne by such Indemnified Party; and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) aboveprovided, (i) further, that the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheldwithheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties Party and does not impose an injunction or any other equitable relief upon the Indemnified Party. Unless and until the Indemnifying Party and (iiassumes the defense of the Third Party Claim as provided in Section 8.4(b) above, however, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate, but shall not thereby waive any right to indemnify therefor pursuant to this Agreement; provided, however, that the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (d) In . The specific provisions of Sections 5.5(c), 5.5(d), 8.5 and 8.7 will govern in the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement conflict with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in general provisions of this Article XISection 8.4.

Appears in 1 contract

Samples: Stock Purchase Agreement (Armstrong World Industries Inc)

Matters Involving Third Parties. (a) If any third party notifies shall notify any Party (an the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Article XIVIII, then the Indemnified Party shall promptly (and in any event within five business days after receiving notice of the Third-Party Claim) notify each the Indemnifying Party thereof in writing; provided, however, provided that no delay on the part of the Indemnified Party in notifying any Indemnifying Party failure to so notify shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely of its obligations hereunder, except to the extent) extent that the Indemnifying Party is thereby prejudicedactually prejudiced thereby. (b) Any The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third-Party ClaimParty; provided, however, that the Indemnifying Party must conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim. (c) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 11.3(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party. (c) Unless and until an Indemnifying Party and (iiassumes the defense of the Third-Party Claim as provided in Section 8.4(b) above, however, the Indemnified Party may defend against the Third-Party Claim in any manner it may reasonably deem appropriate. (d) In no event will not the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of each of the Indemnifying Party Parties (not to be unreasonably withheld). (de) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with This Section 11.3(b) above8.4 shall not apply to Tax Proceedings, (i) the Indemnified Party may defend against, and consent which shall be subject to the entry provisions of any judgment on or enter into any settlement with respect to, the Third-Party Claim in any manner it may reasonably deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Article XISection 10.4.

Appears in 1 contract

Samples: Stock Purchase Agreement (Hawker Beechcraft Quality Support Co)