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Common use of Matters Involving Third Parties Clause in Contracts

Matters Involving Third Parties. (i) If any third party notifies any Party (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 Section 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 actually and materially prejudiced. (ii) 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 by providing written notice to the Indemnified Party within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 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 2 contracts

Samples: Stock Purchase Agreement (HC2 Holdings, Inc.), Stock Purchase Agreement (HC2 Holdings, Inc.)

Matters Involving Third Parties. (i) If any third party notifies any Party (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 Section 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 actually and materially prejudiced. (ii) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen twenty (1520) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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 therefordiligently. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) the Indemnifying Indemnified Party will not consent to may retain separate co-counsel at his or its sole cost and expense and participate in the entry defense 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 PartiesClaim, (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 (IV) 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), and (C) 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). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, he or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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 2 contracts

Samples: Preferred Unit Purchase Agreement (Elandia International Inc.), Preferred Unit Purchase Agreement (Elandia International Inc.)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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 2 contracts

Samples: Stock Purchase Agreement (Remote MDX Inc), Stock Purchase Agreement (National Vision Associates LTD)

Matters Involving Third Parties. (i) If any third party notifies any either Party (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 Section 810, 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. (ii) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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 (subject to any applicable limitations on liability set forth in this Section 10), (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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, and (D) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with Section 10(d)(ii) above, (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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), and (C) 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 there is a complete release of the Indemnified Party specifically included in any settlement agreement. The Indemnified Party shall provide the Indemnifying Party and its counsel with access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with the Indemnifying Party in the defense or settlement thereof. (iv) In the event none any of the conditions in Section 10(d)(ii) above is or becomes unsatisfied, or if the Indemnifying Parties assumes and conducts Party fails to defend or if, after commencing or undertaking any such defense, the defense of the Third-Indemnifying Party Claim in accordance with Section 8(d)(ii) above, howeverfails to prosecute or withdraws from such defense, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner heit may reasonably deem appropriate, shesubject to the prior written consent of the Indemnifying Party (not to be unreasonably withheld), or it reasonably deems appropriate (and B) the Indemnifying Parties will reimburse the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying promptly and periodically for the costs of defending against the Third Party in connection therewith), Claim (including reasonable attorneys’ fees and expenses) and (BC) the Indemnifying Parties will remain responsible for any 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 Section 810. (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 2 contracts

Samples: Asset Purchase Agreement (Atrinsic, Inc.), Asset Purchase Agreement (Brilliant Digital Entertainment Inc)

Matters Involving Third Parties. (i) If any third party notifies any Party (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 Section §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 actually and materially prejudiced. (ii) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with §8(d)(ii) above, (A) the Indemnified Party may retain separate co-counsel at his, her, or 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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), and (C) 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). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section §8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner hehis, sheher, or it may reasonably deems deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section §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 2 contracts

Samples: Business Sale and Membership Interest Purchase Agreement (Penford Corp), Business Sale and Membership Interest Purchase Agreement (Penford Corp)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 8ss.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 actually and materially prejudiced. (ii) Any 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 [reasonably] satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days [15 days] after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence [reasonably] acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice [materially] adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with ss.8(d)(ii) above, (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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-Third Party Claim without the prior written consent of the Indemnifying Party [(not to be unreasonably withheldwithheld unreasonably)], and (C) the Indemnifying 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 Indemnified Party [(not to be withheld unreasonably)]. (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(iiss.8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems [reasonably] may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including [reasonable] attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 8ss.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 2 contracts

Samples: Stock Purchase Agreement (Renegade Venture Nev Corp), Stock Purchase Agreement (Renegade Venture Nev Corp)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party party (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 Section 8Article 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 actually and materially prejudicedprejudiced by such delay. (iib) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given written notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party (it being understood that any Third Party Claim involving a person or entity which is a customer or supplier of the Buyer following the Closing, will be deemed to involve the possibility of such a precedential custom or practice), and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 6.5(b) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6.5(b) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 8Article 6. (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 2 contracts

Samples: Asset Purchase Agreement (1847 Goedeker Inc.), Asset Purchase Agreement (1847 Holdings LLC)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 87, 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 prejudicedprejudiced by such delay. (ii) Any 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 the Indemnified Party by providing written notice to as long as (A) the Indemnifying Party notifies the Indemnified Party within in writing not later than fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) As long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 5(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii5(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses and the amount paid in settlement), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 87. (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 2 contracts

Samples: Member Interest Purchase Agreement (Armada Water Assets Inc), Member Interest Purchase Agreement (Armada Water Assets Inc)

Matters Involving Third Parties. (i) i. If any third party notifies shall notify any Party (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 Section 8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (ii) . Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect and against the entirety of such Third Party Claim and (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the fullest extent provided in this Section 8continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. iii. So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 8(i)(ii) above, (vA) If there shall be the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (B) the Indemnified Party will not consent to the entry of 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 judgment or enter into any settlement with respect to Tax conteststhe Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying 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 Indemnified Party (not to be withheld unreasonably).

Appears in 1 contract

Samples: Asset Purchase Agreement (Rmi Net Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 811, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 11(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses, including fees (not to be withheld unreasonably) and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii11(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 811. (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: Stock Purchase Agreement (getpokerrakeback.com)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 810, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder (including the payment in cash of all fees and costs associated with such defense), (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 10(c)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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) withheld unreasonably), unless the judgment or proposed settlement following shall apply (I) involves only the payment of money damages by one or more of in which case the Indemnifying Parties, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete Party may settle and unconditional release of the Indemnified Party from all liability in respect of compromise such Third Party Claim and (IV) 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 Indemnified Party): (x) there is no finding or admission of any violation of law or any violation of the rights of any Person and no affect on any other claims that may be made against the Indemnified Party; and (y) the sole relief provided is monetary damages that are paid in full in cash by the Indemnifying Party. If the Indemnified Party fails to consent to any settlement or compromise offer, the Indemnifying Party (may continue to contest such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party for such Third Party Claim shall not to be unreasonably withheld)exceed such settlement or compromise offer. (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii10(c)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith; provided that such judgment or settlement does not involve a finding or admission of any violation of law or any violation of the rights of any Person by the Indemnifying Party, there is no affect on any other claims that may be made against the Indemnifying Party, and the sole relief for which the Indemnifying Party may be responsible is monetary damages), and (B) the Indemnifying Parties Party will reimburse the Indemnified Party (with cash or Holdings Common Stock, as elected by the Indemnifying Party) promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (C) the Indemnifying Party will remain responsible for any 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 Section 810. (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: Asset Purchase Agreement (Vitalstream Holdings Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 86, 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 actually and materially prejudiced. (ii) 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 6(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (B) 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), and (C) the Indemnifying Party will remain responsible for any 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 Section 86. (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: Asset Purchase Agreement (Interactive Magic Inc /Nc/)

Matters Involving Third Parties. (i) If any third party notifies any Party (the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that may give rise to a claim for indemnification action indemnifiable under this Article VI shall be brought, asserted or threatened against any other Party (the “Indemnifying Party”) person indemnified under this Section 8Article VI, then the Indemnified Party shall promptly notify each Indemnifying the Indemnitor. A failure to notify the Indemnitor timely or at all shall reduce the liabilities and obligations of the Indemnitor under Article VI only to the extent the Indemnitor actually shall be prejudiced by the failure. The Indemnitor shall assume the defense of the action, including the employment of counsel satisfactory to the Indemnified Party thereof and the payment of all related fees and expenses, but the Indemnified Party may employ separate counsel in writing; providedthe action and participate in the defense of the action at its own expense. The Indemnified Party, however, may by written notice to the Indemnitor assume the defense of the action, including the employment of counsel, at the expense of the Indemnitor (except that no the Indemnitor shall not be liable for the fees and expense of more than one such separate counsel with respect to the action) if: the Indemnitor fails to take one or more of the following acts without a delay on that reasonably could be expected to be prejudicial to the part interests of the Indemnified Party: (i) acknowledge in writing to the Indemnified Party the liability of the Indemnitor to the Indemnified Party under this Article VI with respect to the action, (ii) assume the defense, (iii) post an indemnity or similar bond (in form and substance satisfactory to the Indemnitor) in an amount equal to the full amount for which the Indemnitor may be liable as a result of the action (including penalties and interest) or provide other evidence satisfactory to the Indemnified Party to the ability of the Indemnitor to pay that amount in full or (iv) employ counsel reasonably satisfactory to the Indemnified Party. the person against whom the action shall be brought, asserted or threatened (including any impleaded parties) include the Indemnified Party and the Indemnitor and the Indemnified Party is advised by counsel that there may be one or more legal defenses available to the Indemnified Party that are different or in addition to those available to the Indemnitor. the Indemnified Party reasonable believes that the action or an unfavorable resolution of the action may materially and adversely affect the business, properties, operations, prospects or condition (financial or otherwise) of the Indemnified Party in notifying and its affiliates other than as a result of the payment of money damages. If the Indemnified Party has assumed the defense of the action pursuant to any Indemnifying Party conditions stated above, then the Indemnitor 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. (ii) Any Indemnifying Party will not have the right to assume the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to the Indemnified Party within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 action on behalf of the Indemnified Party and the Indemnifying Indemnified Party shall have the right to control the defense, compromise or settlement of any action indemnifiable under this Article on behalf of and for the account and risk of Indemnitor. The Indemnitor shall be bound by the same counsel creates a conflict result of interest under applicable standards of professional conduct of attorneys or prejudices 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 Claimany action, 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. (iii) So long as the Indemnifying Party has assumed and is conducting whether the defense of shall have been assumed by the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) the Indemnifying Party will not consent to the entry of any judgment on Indemnitor 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, (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 (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, and (B) shall indemnify the Indemnified Party will not consent against, and hold the Indemnified Party harmless from, any loss in any way relating to or allegedly arising in connection with the matter or matters which shall be the basis of the action or otherwise connected to the entry action, except that the Indemnitor shall not be liable for the payment of the amount of money damages provided in a settlement of any judgment on action indemnifiable under this Article defended by the Indemnified Party pursuant to (ii) or enter into any settlement with respect to the Third-Party Claim (iii) above that shall have been effected without the prior written consent of the Indemnifying Party (Indemnitor, which consent shall not to be unreasonably withheld). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 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: Asset Purchase Agreement

Matters Involving Third Parties. (ia) If any third party notifies any Party Buyer Indemnitee or Seller Indemnitee (the each 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 either of Seller or Buyer (the “Indemnifying Party”) under this Section 86, 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. (iib) Any The Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to (and its insurer, if applicable) so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third-Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third-Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with Section 6.5(b) above, (i) 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, and (Bii) 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). , and (ivii) In the event none of the Indemnifying Parties assumes and conducts Party will not consent to the defense 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). (d) In the event any of the conditions in accordance with Section 8(d)(ii6.5(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (Bii) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including attorneys’ fees and expenses), and (iii) the Indemnifying Party will remain responsible for any 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 Section 86. (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: Asset Purchase Agreement (Commercial Vehicle Group, Inc.)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party hereunder with respect to such Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligation hereunder, (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief and (D) the Indemnifying Party conducts the defense of the Third-Third Party Claim claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any Adverse Consequences 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 Section 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: Asset Purchase Agreement (Easy Gardener Products LTD)

Matters Involving Third Parties. (ia) If any third party notifies Third Party shall notify any Party (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 as provided in Section 811.01, 11.02 or 11.03, 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 actually and materially prejudiced. (iib) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The , (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii11.04(b) above, howeveris or becomes unsatisfied, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) subject to any limitations set forth in Section 11.02(c) or 11.03, as applicable, the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for any Adverse Consequences suffered by the indemnified Party in defending against the Third Party Claim, and (Biii) subject to any limitations set forth in Section 11.02(c) or 11.03, as applicable, the Indemnifying Parties will remain responsible for any 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 Section 8extent. (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: Asset Purchase Agreement (Teamstaff Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 810, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 10(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii10(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 810. (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: Stock Purchase Agreement (TradeOn Inc.)

Matters Involving Third Parties. (ia) If any third party notifies shall commence an Action against any Indemnified Party (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 Indemnifying Party (the “Indemnifying Party”) under this Section 8Article X, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writingwriting within a reasonable period of time after the commencement of such Action; 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 extentextent that) the Indemnifying Party is thereby actually and materially prejudiced. (iib) Any The Indemnifying Party will shall have the right to assume defend the defense of Indemnified Party against the Third-Third Party Claim with counsel of its the Indemnifying Party's choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim that the Indemnifying Party shall indemnify the Indemnified Party from and against the entirety 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnifying Indemnified Party; provided, howeverin the Indemnified Party's reasonable judgment, that the Indemnifying Party shall conduct will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order diligently. In the event the Indemnifying Party is defending a Third Party Claim, the Indemnified Party shall have the right to preserve its rights disclose, to assume the public or otherwise, the identity of the Indemnifying Party, the nature of the Third Party Claim and defense, and the fact that the Indemnifying Party is handling the defense. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 10.7(b), (i) the Indemnified Party may retain separate co-counsel at its the Indemnified Party's 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 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 (ii) the Indemnified Party for any expenses, including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) the Indemnifying Party will shall not consent to the entry of any judgment on - 36 - 41 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 unreasonably withheld, and (iii) the Indemnifying Party shall 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 Indemnified Party (Party, which consent shall not to be unreasonably withheld) unless the judgment withheld or proposed settlement (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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)delayed. (ivd) In the event none If any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions set forth in accordance with Section 8(d)(ii10.7(b) aboveis or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner hethe Indemnified Party may deem appropriate, she, or it reasonably deems appropriate in the Indemnified Party's sole discretion (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (Bii) the Indemnifying Parties will Party shall reimburse the Indemnified Party promptly and periodically for the cost of defending against the Third Party Claim (including all attorneys' fees and expenses), (iii) the Indemnifying Party shall remain responsible fully liable for any Adverse Consequences 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 Section 8Article X, and (iv) the Indemnifying Party shall cooperate fully with the Indemnified Party in the Indemnified Party's defense of the Third Party Claim. (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: Stock Purchase and Merger Agreement (Partners Health Plan of Pennsylvania Inc)

Matters Involving Third Parties. (ia) If any third party notifies any Party (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 Section 8Article VII, then the Indemnified Party shall promptly notify each Indemnifying Party thereof of the Third-Party Claim 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 under this Agreement unless (and then solely to the extent) the Indemnifying Party is thereby actually and materially prejudicedprejudiced by such delay. (iib) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as: (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the Adverse Consequences, subject to the limitations (if any) under this Article VII, the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim; (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party has and will have the financial resources to defend against the Third-Party Claim and fulfill its indemnification obligations under this Agreement; (C) the Third-Party Claim involves only money damages and does not seek an injunction or other equitable relief; (D) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to be adverse to the continuing business interests or the reputation of the Indemnified Party; (E) the Third-Party Claim does not relate to or arise in connection with any Proceeding (other than any non-criminal Tax Proceeding with respect to a Pre-Closing Tax Period that is not a Straddle Period); (F) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order diligently; (G) the assumption of the defense by the Indemnifying Party is not reasonably likely to preserve its rights cause a Buyer Indemnitee to lose coverage under the R&W Insurance Policy; (H) a Buyer Indemnitee or the insurer is not required to assume the defense of such Third-Party Claim. The Claim pursuant to the R&W Insurance Policy; or (I) the insurer of the R&W Insurance Policy and the Buyer have not confirmed in writing that the applicable Adverse Consequences will be fully covered other than by the Sellers. (c) So long as the Indemnifying Party is conducting the defense of the Third-Party Claim in accordance with Section 7.5(b) above: (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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). (iv) In and the event none consent of the insurer under the R&W Insurance Policy; and (C) the Indemnifying Parties assumes and conducts Party will not consent to the defense 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; provided that the Indemnified Party may withhold consent if such consent would require the Indemnified Party to admit fraud, intentional wrongdoing or a violation of Applicable Law or impose any restriction on the business of the Indemnified Party). (d) In the event any of the conditions in accordance with Section 8(d)(ii7.5(b) aboveabove is or becomes unsatisfied, however, : (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim if it acts reasonably and in any manner he, she, or it reasonably deems appropriate good faith upon fifteen (15) days’ prior written notice (if possible) to the Indemnifying Party (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party); (B) the Indemnifying Parties will reimburse the Indemnified Party in connection therewithpromptly and periodically for the reasonable costs of defending against the Third-Party Claim (including attorneys’ fees and expenses at all levels of Proceedings), ; and (BC) the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, incurred with respect to, relating to, in the nature of, or caused by the Third-Party Claim to the fullest extent provided in this Section 8Article VII. (ve) If there Notwithstanding anything to the contrary in this Section 7.5, the control of the defense of any Third-Party Claim for which a Buyer Indemnitee may seek recovery under the R&W Insurance Policy shall be any conflicts between subject to 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 contestsR&W Insurance Policy.

Appears in 1 contract

Samples: Equity Purchase Agreement (Marinemax Inc)

Matters Involving Third Parties. (i) i. If any third party notifies shall notify any Party (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 Section 8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (ii) . Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect and against the entirety of such Third Party Claim and (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the fullest extent provided in this Section 8continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (v) If there shall be any conflicts between iii. So long as the provisions Indemnifying Party is conducting the defense of this the Third Party Claim in accordance with Section 8(d8(i) and Section 9(f(ii) above, (relating 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, (B) the Indemnified Party will not consent to Tax contests), the provisions entry of Section 9(f) shall control any judgment or enter into any settlement with respect to Tax conteststhe Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying 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 Indemnified Party (not to be withheld unreasonably).

Appears in 1 contract

Samples: Asset Purchase Agreement (Rmi Net Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 89, 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 actually and materially prejudiced. (ii) Any Unless the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party determines in good faith after conferring with its outside counsel that joint representation would be inappropriate, 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 by providing written notice to the Indemnified Party at any time within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying PartyClaim; provided, however, that the Indemnifying Party shall must conduct the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume in this regard; and provided further that 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-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 defenses available . Anything in this Section 9(d)(ii) to the Indemnified Partycontrary notwithstanding, then the Indemnifying Party shall not be liable for entitled to assume the defense of any Third Party Claim (and shall pay the fees and expenses of counsel employed incurred by the Indemnified Party. The Indemnified Party may take any actions reasonably necessary to defend in defending such Third Party Claim prior as incurred) if the Third Party Claim is brought by a Governmental Authority or if the Third Party Claim seeks an injunction or other equitable relief or any other relief other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to the time that it receives notice from keep the Indemnifying Party that it will assume or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of such Third Party Claimany action, the defense of which it is maintaining, and to cooperate in good faith with the Indemnifying Party shall reimburse other with respect to the Indemnified Party for defense of any expenses, including fees and expenses of counsel, incurred in connection with such defense promptly upon written request thereforaction. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 8(d)(ii9(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying PartiesParty, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) does not require an admission of any violation of Law or violation of the rights of any Person by the Indemnified Party and includes a complete and unconditional release of the Indemnified Party from all liability in respect of such Third Party Claim and (IV) 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-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably). (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 8(d)(ii9(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), ) and (B) the Indemnifying Parties Party will remain responsible for any 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 Section 89. (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: Asset Purchase Agreement (Labone Inc/)

Matters Involving Third Parties. (i) 14.12.1 If any third Person other than a party notifies any Party (the “Indemnified Party”) with respect to any matter this Agreement (a “Third-Party Claim”"Third Party") that asserts a right or claim which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Section 8Article (a "Third Party Claim"), then any party having Knowledge of the Indemnified Party matter shall promptly notify each Indemnifying Party thereof in writingthe other parties of the matter; provided, however, provided that no any delay on the part of by the Indemnified Party in notifying any providing notice shall not affect the right of indemnification unless the Indemnifying Party's rights and interests under this Article or otherwise have been materially prejudiced by the delay. 14.12.2 An Indemnifying Party shall relieve the Indemnifying may defend an Indemnified Party from against any obligation hereunder unless Third Party Claim giving rising to a right of indemnification under this Article provided (and then solely to the extenta) the Indemnifying Party is thereby actually and materially prejudiced. notifies the Indemnified Party in writing within fifteen days after receipt of the notice required under this Section that the Indemnifying Party will indemnify the Indemnified Party as required by this Article, (iib) Any the Indemnifying Party provides the Indemnified Party with reasonable evidence that the Indemnifying Party will have the right financial resources to assume both undertake the defense and fulfill its indemnification obligations, (c) the Third Party Claim involves only money damages and does not seek equitable relief which might be materially adverse to the Indemnified Party's continuing business, (d) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (e) the Indemnifying Party conducts the defense of the Third-Third Party Claim with actively and diligently. The Indemnifying Party's choice of legal counsel of its choice for a defense under this Subsection 14.12.2 shall be reasonably satisfactory to the Indemnified Party by providing written notice to the Indemnified Party within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the . 14.12.3 At any time an Indemnifying Party shall conduct is conducting the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume accordance with Section 14.12.2, the defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and own expense and participate in the defense of defense. If both the Third-Indemnifying Party Claim; provided, however, that if the representation of and the Indemnified Party and are participating in the Indemnifying Party by the same counsel creates a conflict of interest under applicable standards of professional conduct of attorneys or prejudices the defenses available to the Indemnified Partydefense, then the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party. The Indemnified Party neither 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 other's prior written consent consent, which shall not be withheld unreasonably. 14.12.4 If, however, at any time an Indemnifying Party is conducting the defense of the Third Party Claim but not in accordance with Section 14.12.2, 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete may conduct its own defense and unconditional release of the Indemnified Party from all liability in respect of such Third Party Claim and (IV) 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 may 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Third Party Claim in any manner heit may reasonably determine with the consent of the Indemnifying Party, shewhich shall not be unreasonably withheld, or it reasonably deems appropriate (in which case the Indemnifying Party shall promptly and at reasonable intervals periodically reimburse the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewithfor the costs of its defense (including reasonable attorneys' fees), and (B) the Indemnifying Parties will remain responsible for any Adverse Consequences the . An 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 Party's action under this Section 814.12.4 shall not affect its right of indemnification under this Article. (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: Asset Purchase Agreement (Karrington Health Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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: Stock Purchase Agreement (Wintrust Financial Corp)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party (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 Section 8Article IX, 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 prejudicedprejudiced thereby. (iib) Any 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 the Indemnified Party by providing written notice to so long as: (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences, subject to Section 9.8 below, the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim; (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder; (iii) if Parent or any of its Subsidiaries is the Indemnified Party, the Third Party Claim does not seek injunctive or other equitable relief that could affect an existing product or product development of Parent or any of its Subsidiaries (including the Surviving Corporation); (iv) the Indemnifying Party conducts the defense of the Third Party Claim in a reasonably active and diligent manner; and (v) the Indemnifying Party complies with its obligations set forth in Section 9.6. (c) Notwithstanding the Indemnifying Party’s election to appoint counsel (including local counsel) to represent the Indemnified Party in an action, the Indemnified Party shall have the right to employ separate counsel (including local counsel), and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel (but only in the event that the Indemnifying Party is required to indemnify such Indemnified Party with respect to such Third Party Claim) if: (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to the Indemnifying Party; provided, however, that (iii) the Indemnifying Party shall conduct not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action; or (iv) the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the expense of the Indemnifying Party. (d) 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 to assume accordance with Section 9.5(b) or Section 9.5(c) above, (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ive) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii9.5(b) above, howeverabove is or becomes unsatisfied, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and upon consent from the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith, not to be unreasonably withheld), (ii) provided that the Indemnifying Party is not disputing in good faith its obligation to indemnify the Indemnified Party against a Third Party Claim, the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against such Third Party Claim (including reasonable attorneys’ fees and expenses); and (Biii) the Indemnifying Parties Party will remain responsible for any 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 Section 8Article IX. (vf) If there Each Party acknowledges and agrees that it shall not be entitled to seek indemnification from any conflicts between other Party for any Third Party Claim without: (i) for any non-litigation matter, giving notice of such Third Party Claim to such other Party in accordance with Section 9.5(b)(i) above (including the provisions proviso contained therein); or (ii) for a litigation matter, (A) giving notice of this such Third Party Claim to such other Party in accordance with Section 8(d9.5(b)(i) above (including the proviso contained therein) and (B) giving such other Party the opportunity to defend against such Third Party Claim in accordance with Section 9(f9.5(b) (relating to Tax contests)above. Parent may, the provisions in its sole discretion and without providing any notice, defend, handle and dispose of Section 9(f) shall control as it sees fit any Third Party Claim so long as it does not seek indemnification with respect to Tax contestssuch Third Party Claim and such Third Party Claim does not include injunctive or equitable relief against the Target Stockholders. In addition, Parent may, in its sole discretion, assume the defense of, and handle and dispose of as it sees fit any Third Party Claim for which it has previously sought indemnification by providing notice of its intention to so defend, handle and dispose of such Third Party Claim and by irrevocably waiving any right to seek indemnity with respect to such Third Party Claim (except for any amounts accrued and unpaid by the Target Stockholders prior to the date of such notice from Parent and such Third Party Claim does not include injunctive or equitable relief against the Target Stockholders). In the event that Parent provides such notice, the Target Stockholders shall promptly and reasonably cooperate with Parent in transferring the defense of such Third Party Claim.

Appears in 1 contract

Samples: Merger Agreement (Micromuse Inc)

Matters Involving Third Parties. (iA) If any third party notifies shall notify any Party (the “Indemnified Party”"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 Section 8Article VII, 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 actually and materially prejudiced. (iiB) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (C) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7.4(b) above, (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivD) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii7.4(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (Biii) the Indemnifying Parties will remain responsible for any Adverse Consequences 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 Section 8Article VII. (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: Stock Purchase Agreement (Us Xpress Enterprises Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 813, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 13(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii13(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 813. (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: Stock Purchase Agreement (Castle & Morgan Holdings Inc)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party Acquiree Indemnified Parties (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 Acquiror Sole Shareholder (the “Indemnifying Party”) under this Section 8Article XII, 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. (iib) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 12.3(b) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim any condition in accordance with Section 8(d)(ii12.3(b) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any Adverse Consequences 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 Section 8Article XI. (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: Share Exchange Agreement (Anpulo Food, Inc.)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party (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 Section 89, 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 actually and materially prejudiced. (iib) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect of such Third Party Claim and (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of against the Indemnified Party, and (B) the Indemnified 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 Indemnifying Party (not to be unreasonably withheld). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any Adverse Consequences Indemnifiable Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the ThirdThird Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 9.4(b) above, (i) 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) 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 (not to be withheld unreasonably), and (iii) the Indemnifying 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 Indemnified Party (not to be withheld unreasonably). (d) In the event any of the conditions in Section 9.4(b) above is or becomes unsatisfied, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim, to the fullest extent provided in this Section 9, (ii) the Indemnifying 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 fullest extent provided in this Section 9, and (iii) the Indemnifying Party will remain responsible for any Indemnifiable Damages 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 Section 89. (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: Merger Agreement (Santa Barbara Restaurant Group Inc)

Matters Involving Third Parties. (i) If any third party notifies any Party (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 Section 86, 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. (ii) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of his or its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen twenty (1520) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with Section 6(d)(ii) above, (A) the Indemnified Party may retain separate co-counsel at his or 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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), and (C) 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). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, he or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 86. (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: Securities Purchase Agreement (Elandia International Inc.)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party Acquiree Indemnified Parties (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 Acquiror Principal Shareholder (the “Indemnifying Party”) under this Section 8Article XII, 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. (iib) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 11.3(b) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim any condition in accordance with Section 8(d)(ii11.3(b) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any Adverse Consequences 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 Section 8Article XI. (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: Share Exchange Agreement (Vb Clothing, Inc.)

Matters Involving Third Parties. (i) If any third party notifies will notify any Party (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 Section 8, then the Indemnified Party shall will 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 relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect and against the entirety of such Third Party Claim and (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the fullest extent provided in this Section 8continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (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: Stock Purchase Agreement (Foreclosure Solutions, Inc.)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party (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 Section 87, 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 actually and materially prejudiced. (iib) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature or, or caused by the Third Party Claim, subject to the limitations set forth in Sections 7.1 and 7.2, (ii) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7.4(b) above, (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii7.4(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (Biii) the Indemnifying Parties will remain responsible for any 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 Section 87 and subject to the limitations set forth in Sections 7.1 and 7.2. (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: Stock Purchase Agreement (Jpe Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 8(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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 30 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with (S)8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreason ably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii(S)8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 8(S)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: Stock Purchase Agreement (Argosy Education Group Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect and against the entirety of such Third Party Claim and (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the fullest extent provided in this Section 8continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (viii) If there shall be So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 8(d)(ii) above, (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, (B) the Indemnified Party will not consent to the entry of 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 judgment or enter into any settlement with respect to Tax conteststhe Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying 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 Indemnified Party (not to be withheld unreasonably). (iv) In the event any of the conditions in Section 8(d)(ii) above is or becomes unsatisfied, however, (A) the Indemnified Party 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 the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), 44 49

Appears in 1 contract

Samples: Asset Purchase Agreement (Leap Wireless International Inc)

Matters Involving Third Parties. (i) If any third party notifies any an Indemnified Party (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 Section 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 actually and materially prejudiced. (ii) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen thirty (1530) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, (or sooner if such claim so requires) that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against any and all Losses the Indemnified Party may suffer arising out of or relating to the Third-Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order diligently. This provision shall not apply to preserve its rights the extent that the Transaction Insurance Company or the Environmental Insurance Company elects to assume defend the Third Party Claim. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with Section 8(f)(ii), (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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), and (C) 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). (iv) In the event none any of the conditions in Section 8(f)(ii) is or becomes unsatisfied (after notice to the Indemnifying Parties assumes Party and conducts after the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, howeverIndemnifying Party’s failure to cure such conditions), (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including attorneys’ fees and expenses), and (C) the Indemnifying Party will remain responsible for any Adverse Consequences Losses the Indemnified Party may suffer resulting from, arising out of, of or relating to, in the nature of, or caused by to the Third-Party Claim to the fullest extent provided in this Section 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: Asset Purchase Agreement (Remy International, Inc.)

Matters Involving Third Parties. 38 (ia) If any third party notifies shall notify any Party Seller, the Company or Telepad (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 Section 8Article VIII, then the such 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 (unless, and then solely to the extent) , the Indemnifying Party thereby is thereby actually and materially prejudiced. (iib) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Third Party Claim with counsel of its the Indemnifying Party's choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to that the Indemnifying Party; provided, howeversubject to the terms and conditions hereof, will indemnify the Indemnified Party from and against the entirety of any 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party shall conduct will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7.05(b), (i) the Indemnified Party may retain separate co-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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) aboveIf, however, any of the conditions in Section 7.05(b) is or becomes unsatisfied, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (Biii) the Indemnifying Parties will remain responsible for any 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 Section 8Article VII. (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: Share Purchase Agreement (Telepad Corp)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim for reduction of the Merger Consideration or a claim for indemnification against any the other Party (the "Indemnifying Party") under this Section 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 actually and materially prejudiced. (ii) 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect of such Third Party Claim and (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of against the Indemnified Party, and (B) the Indemnified 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 Indemnifying Party (not to be unreasonably withheld). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any Adverse Consequences Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the ThirdThird Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (iii) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 8(d)(ii) above, (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, (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 without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying 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 Indemnified Party (not to be withheld unreasonably). (iv) In the event any of the conditions in Section 8(d)(ii) above is or becomes unsatisfied, however, (A) the Indemnified Party 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 the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), (B) the Indemnifying 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), and (C) the Indemnifying Party will remain responsible for any Damages 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 Section 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: Merger Agreement (Barr Pharmaceuticals Inc)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Indemnified Party (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 Indemnifying Party (the “Indemnifying Party”) under this Section 8section 11, 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 the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely hereunder, except to the extent) extent the Indemnifying Party thereby is thereby actually and materially prejudiced. Such notice shall describe the claim, the amount thereof (to the extent then known and quantifiable), and the basis thereof, in each case to the extent known to the Indemnified Party. (iib) 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 his or its choice reasonably satisfactory to the Indemnified Party; so long as (i) the Indemnifying Party by providing written notice to notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Losses the Indemnified Party may suffer resulting from or in connection with the Third Party Claim, (ii) the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) Unless and until the defense of such Third-Indemnifying Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in assumes the defense of the Third-Third Party Claim; providedClaim as provided in section 11.04(b) above, however, that if the representation of the Indemnified Party and may defend against the Third Party Claim in any manner it reasonably may deem appropriate. (d) If the Indemnifying Party by has the same counsel creates a conflict right, but does not assume control of interest under applicable standards defense of professional conduct of attorneys or prejudices the defenses available to the Indemnified Partyany claim in accordance with this section 11.04, 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 nonetheless participate (at its own expense) in the defense of such Third claim and the Indemnified Party Claimwill consult with the Indemnifying Party in respect of such defense. If the Indemnifying Party has the right and does assume control of defense of any claim in accordance with this section 11.04, then the Indemnified Party may nonetheless participate (at its own expense) in the defense of such claim and the Indemnifying Party shall reimburse will consult with the Indemnified Party for any expenses, including fees and expenses in respect of counsel, incurred in connection with such defense promptly upon written request therefor. defense. (iiie) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 8(d)(iiparagraph 11.04(b) above, (Ai) 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 (not to be withheld unreasonably), and (ii) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 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.. ARTICLE XII

Appears in 1 contract

Samples: Asset Purchase Agreement (Rexworks Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 84, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 30 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice [materially] adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 4 (d)(ii) above, (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; 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 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 (B) the Indemnified Party for will not consent to the entry of any expenses, including fees and expenses judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed Party, and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) . In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii4(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 84. (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: Agreement With Seller Stockholders (Intellisys Group Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section §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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with §8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section §8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section §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: Stock Purchase Agreement (WellTek Inc)

Matters Involving Third Parties. (ia) If any third party (including, without limitation, any Governmental Authority) notifies any Party party (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 Section 8"), then the Indemnified Party shall promptly will notify each Indemnifying Party thereof in writing; provided, however, that no writing within 15 days after receiving such notice. No delay on the part of the Indemnified Party in notifying any Indemnifying Party shall will relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby actually and materially prejudiced. (iib) Any Indemnifying Party will have the right right, at its sole cost and expense, to assume defend the defense of Indemnified Party against the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights diligently. If the Indemnifying Party does not elect to assume control of or otherwise participate in the defense or settlement of any Third Party Claim, it will be bound by the results obtained by the Indemnified Party with respect to the Third Party Claim. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7.3(b) above, (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii7.3(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (Bii) the Indemnifying Parties will remain responsible for any Adverse Consequences reimburse the Indemnified Party may suffer resulting from, arising out of, relating to, in promptly and periodically for the nature of, or caused by costs of defending against the Third-Third Party Claim to the fullest extent provided in this Section 8. (v) If there shall be any conflicts between the provisions of this Section 8(d) including reasonable attorneys' fees and Section 9(f) (relating to Tax contestsexpenses), and (iii) the provisions of Section 9(f) shall control with respect to Tax contests.Indemnifying Parties will

Appears in 1 contract

Samples: Asset Purchase Agreement (Rentx Industries Inc)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party entitled to indemnification under Section 7.2 (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 hereto (the "Indemnifying Party") under this Section 8Article VII, then the Indemnified Party shall promptly notify (and in any event by the sooner to occur of (i) 10 days after receipt of notice by it, and (ii) five days prior to the date a responsive pleading is due (which notification shall be made by either facsimile or overnight delivery pursuant to Section 8.1 hereof) 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 actually and materially prejudiced. (iib) Any 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 the Indemnified Party by providing written notice so long as (i) the Indemnifying Party promptly notifies the Indemnified Party in writing that the Indemnifying Party will indemnify the Indemnified Party, to the extent indemnification is provided for under Section 7.2, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, and (iii) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7.3(b) above, (i) 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 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 (ii) 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 (which consent shall reimburse the Indemnified Party for any expensesnot unreasonably be withheld), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 a 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of agreement is obtained releasing the Indemnified Party from all liability in respect of such Third Party Claim and thereunder, (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, and (Biv) the Indemnified Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-a Third Party Claim Claim, which involves an injunction or other equitable relief, without the prior written consent of the Indemnifying Party (Indemnified Party, which consent will not to be unreasonably withheld), and (v) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to a Third Party Claim which will, in the good faith judgment of the Indemnified Party, likely establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party. (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii7.3(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), provided that the Third Party Claim is subject to indemnification under Section 7.2 and (Biii) the Indemnifying Parties will remain responsible for any Adverse Consequences Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim incur to the fullest extent provided in this Section 87.2. (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: Medusa Spar Agreement (Callon Petroleum Co)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (the “Indemnified Party”"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 Section 8, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudicedprejudiced thereby. (ii) 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith reasonable judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (B) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (C) the Indemnifying Party will remain responsible for any 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 Section 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: Asset Purchase Agreement (E Centives Inc)

Matters Involving Third Parties. (i) If any third party notifies any Party entitled to indemnification hereunder (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 Section 8§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 is thereby actually and materially prejudiced. (ii) Any Indemnifying Party will shall have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with §6(d)(ii), (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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 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), and (C) the Indemnifying Party 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). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii§6(d)(ii) aboveis or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, or it may reasonably deems deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will shall reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable attorneys’ fees and expenses incurred after such condition or conditions become unsatisfied), and (C) the Indemnifying Parties shall remain responsible for any 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 Section 8§6. (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: Asset Purchase Agreement (Professional Diversity Network, Inc.)

Matters Involving Third Parties. (i) i. If any third party notifies shall notify any Party (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 Section 8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (ii) . Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect and against the entirety of such Third Party Claim and (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the fullest extent provided in this Section 8continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (v) If there shall be any conflicts between iii. So long as the provisions Indemnifying Party is conducting the defense of this the Third Party Claim in accordance with Section 8(d) and Section 9(f8(j) (relating ii) above, (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, (B) the Indemnified Party will not consent to Tax contests), the provisions entry of Section 9(f) shall control any judgment or enter into any settlement with respect to Tax conteststhe Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying 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 Indemnified Party (not to be withheld unreasonably).

Appears in 1 contract

Samples: Asset Purchase Agreement (Rmi Net Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 812, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 12(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii12(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 812. (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: Stock Purchase Agreement (Travel Hunt Holdings Inc)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party party (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 Section 8Article XI, 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 actually and materially prejudicedprejudiced by such delay. (iib) 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 business days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against any indemnifiable Losses the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill the Indemnifying Party’s indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 11.5(b) above, (i) 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, and (Bii) 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), and (iii) the Indemnifying 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 Indemnified Party (which shall not be unreasonably withheld); provided, however, with respect to subsections (ii) and (iii), if such settlement or judgment involves only monetary damages and the Indemnified Party does not consent to such settlement, the Indemnifying Party’s indemnification obligation to the Indemnified Party with respect to such matters to be settled with such settlement shall not exceed the amount proposed in such settlement. (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii11.5(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (Bii) 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), and (iii) the Indemnifying Party will remain responsible for any Adverse Consequences 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 Section 8Article XI. (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 and Sale Agreement (Young Innovations Inc)

Matters Involving Third Parties. (ia) If any third party notifies any Party party hereto (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 party hereto (the "Indemnifying Party") under this Section 8Article VII, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof promptly and in writingany event within five Business Days after receiving any written notice from a third party; provided, however, provided that no delay on the part of the Indemnified Party in notifying any the Indemnifying Party shall will relieve the Indemnifying Party from any obligation hereunder unless (unless, and then solely to the extent) extent that, the Indemnifying Party is thereby actually and materially prejudicedprejudiced thereby. (iib) Any Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party will have may, subject to the right Indemnifying Party's rights to assume the defense of such matter pursuant to paragraph (c) below, defend against the Third-matter in any manner it deems appropriate. (c) The Indemnifying Party Claim may at any point in time choose to assume the defense of all of such matter, in which event: (i) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to Party, (ii) the Indemnified Party within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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, (except 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 defenses available to the Indemnified Party, then the Indemnifying Party shall be liable responsible for the fees and expenses of such separate co-counsel employed by to the extent the Indemnified Party. The Indemnified Party may take any actions reasonably necessary to defend such Third Party Claim prior to concludes that either (x) the time that it receives notice from counsel the Indemnifying Party has selected has a conflict of interest, or (y) there are legal defenses available to the Indemnified Party that it will assume are different from or additional to those available to the defense Indemnifying Party (but only to the extent of such Third Party Claimadditional defenses)), and and (iii) the Indemnifying Party shall reimburse the Indemnified Party for any expenses, including fees and expenses the reasonable costs of counsel, incurred in connection with such defense promptly upon written request thereforor investigation for the period prior to the assumption of the defense. (iiid) So long as Assumption of the defense of any matter by the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) shall without further action constitute an irrevocable waiver by the Indemnifying Party will of its right to claim at a later date that such third party action for which the defense was assumed is not a proper matter for indemnification pursuant to this Article VII. (e) The Indemnified Party shall not consent to the entry of any a judgment on or enter into any settlement with respect to the Third-Party Claim any matter which may give rise to a claim for indemnification without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld or delayed. The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment withheld or proposed settlement (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withhelddelayed). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 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: Asset Purchase Agreement (Foamex Capital Corp)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 88(d), then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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: Merger Agreement (American Consolidated Growth Corp)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party party hereto (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 hereto (the "Indemnifying Party") under this Section 810, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Sectio10(e)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii10(e)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) 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), and (C) the Indemnifying Party will remain responsible for any Adverse Consequences 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 Section 810. (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: Contribution Agreement (Information Management Associates Inc)

Matters Involving Third Parties. (i) If any third party notifies any either Party (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 Section 89, 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. (ii) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with Section 7(d)(ii) above, (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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), and (C) 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). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii9(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, or it may reasonably deems deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 89. (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: Asset Purchase Agreement (Mdi, Inc.)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 89, 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 that Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as: (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 9(d)(ii): (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld), and (C) the Indemnifying 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 Indemnified Party. (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim condition in accordance with Section 8(d)(ii9(d)(ii) aboveis or becomes unsatisfied, however, : (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (B) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys’ fees and expenses), and (C) the Indemnifying Party will remain responsible for any 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 Section 89. (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: Asset Purchase Agreement (Pinnacle Data Systems Inc)

Matters Involving Third Parties. (i) 8.4.1 If any third party notifies any either Party (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 Section 8, then the Indemnified Party shall will 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 will relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby actually and materially prejudicedprejudiced by such delay. (ii) Any 8.4.2 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 the Indemnified Party by providing written notice to so long as (a) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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 that are fully indemnified hereunder and does not seek an injunction or other equitable relief, (d) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (e) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. 8.4.3 So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8.4.2 above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (Ac) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) 8.4.4 In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) above8.4.2 above is or becomes unsatisfied, however, (Aa) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (Bb) 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), and (c) the Indemnifying Party will remain responsible for any 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 Section 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: Stock Purchase Agreement (Full House Resorts Inc)

Matters Involving Third Parties. (ia) If any third party notifies any Party (the “Indemnified Party”) with respect to Buyer or Vitallo receives notice or acquires knowledge of any matter (a “Third-Party Claim”) that which may give rise to a claim by another person and which may then result in a claim for indemnification against any other Party (the “Indemnifying Party”) under this Section 8Article VIII, then the Indemnified Party (i) if such notice or knowledge is received or acquired by Buyer, Buyer shall promptly notify each Indemnifying Party thereof in writingVitallo thereof, and (ii) if such notice or knowledge is received or acquired by Vitallo, he shall promptly notify Buyer thereof; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party giving such notice shall relieve the Indemnifying Party from diminish any obligation hereunder under this Article VIII to provide indemnification unless (and then solely to the extentextent that) the Indemnifying Party party from whom such indemnification is thereby actually and materially sought is prejudiced. . (iib) Any party from whom such indemnification is sought (the "Indemnifying Party will Party") shall have the right to assume defend the defense of party seeking such indemnification (the Third-"Indemnified Party") against such claim by another person (the "Third Party Claim Claim") with counsel of its the Indemnifying Party's choice reasonably satisfactory to the Indemnified Party by providing written notice to the Indemnified Party so long as (i) within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party shall conduct will indemnify the defense of Indemnified Party from and against all Adverse Consequences the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 suffer caused by, resulting from, arising out 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 defenses available relating 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 (ii) the Indemnifying Party shall reimburse provides the Indemnified Party for any expenses, including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as evidence reasonably satisfactory to the Indemnified Party that the Indemnifying Party has assumed and is conducting the defense of financial resources necessary to defend against the Third-Third Party Claim in accordance with Section 8(d)(ii) aboveand fulfill its indemnification obligations hereunder, (Aiii) 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 (I) involves seeks only the payment of money damages by one or more of the Indemnifying Parties, (II) does and not impose an injunction or other equitable relief upon relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, (III) includes likely to 27 establish a complete and unconditional release of precedential custom or practice adverse to the Indemnified Party from all liability in respect of such Third Party Claim and (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf continuing business interests of the Indemnified Party, and (Bv) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Third Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, actively and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 8diligently. (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: Asset Purchase Agreement (Matthews International Corp)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party (the "Indemnified Party") with respect to any matter (including any proposed or actual Tax audit) (a “Third-"Third Party Claim") that which may give rise to a claim for indemnification against any other Party (the "Indemnifying Party") under this Section 89, then the Indemnified Party shall promptly promptly, but in no event more than 15 days following such Indemnified Party's receipt of such notice, notify each Indemnifying Party thereof in writingwriting (a "Claim Notice") of such Third Party Claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such Third Party Claim); 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 actually and materially prejudiced. (iib) Any The Indemnifying Party will shall have 90 days from the right to assume the defense receipt of the Third-Claim Notice (the "Notice Period") to notify the Indemnified Party Claim with counsel (i) whether or not the Indemnifying Party disputes the liability of its choice reasonably satisfactory the Indemnifying Party to the Indemnified Party by providing written notice hereunder with respect to such claim or demand and (ii) whether or not it elects to defend the Indemnified Party within fifteen (15) days after against such claim or demand. All costs and expenses incurred by the Indemnified Indemnifying Party has given notice of the Third-Party Claim to in defending such claim or demand shall be a liability of, and shall be paid by, the Indemnifying Party; provided, however, that the amount of such expenses shall be a liability of the Indemnifying Party hereunder, subject to the limitations set forth in Sections 9.3 and 9.4 hereof. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it elects to defend the Indemnified Party against such claim or demand and except as hereinafter provided, the Indemnifying Party shall conduct have the defense of right to defend the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume the defense of such Third-Party Claim. The Indemnified Party by appropriate proceedings with counsel reasonably satisfactory to the Indemnified Party, but subject in all cases to consultation in good faith with the Indemnified Party. If any Indemnified Party desires to participate in any such defense or settlement it may retain separate co-counsel do so at its sole cost and expense and participate in expense, but control of such defense or settlement shall remain with the Indemnifying Party. (c) If the Indemnifying Party assumes the defense of the Third-a Third Party Claim, (i) it will be conclusively established for purposes of this Agreement that such Third Party Claim constitutes an indemnifiable Loss, subject to the limitations set forth in Sections 9.3 and 9.4 hereof; providedand (ii) no compromise or settlement of such claims may be offered or effected by the Indemnifying Party without the Indemnified Party's prior written consent unless (A) the proposed settlement or compromise does not contain a finding or admission of any violation of law or any violation of the rights of any Person by the Indemnified Party, however(B) the proposed settlement or compromise imposes on the Indemnified Parties only monetary payment obligations, that if (C) there would be no indemnifiable Loss incurred by any Indemnified Party not paid or fully indemnified by the representation Indemnifying Party or any imposition of a consent order, obligation, agreement, injunction or decree which in the reasonable judgment of the Indemnified Party would materially restrict or competitively disadvantage the future activity or conduct of the Indemnified Party or any Subsidiary or Affiliate thereof (D) the proposed settlement or compromise includes a full release of the Indemnified Party and all Subsidiaries and Affiliates thereof in respect of all indemnifiable Losses resulting therefrom, related thereto or arising therefrom and (E) such settlement or compromise would not result in a waiver or other release of rights or defenses of the Indemnified Party in respect of matters not related thereto or arising therefrom. (d) If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand, or, if the same counsel creates a conflict of interest under applicable standards of professional conduct of attorneys or prejudices the defenses available to be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be the liability of the Indemnifying Party hereunder, subject to the limitations set forth in Sections 9.3 and 9.4 hereof. (e) To the extent the Indemnifying Party shall be liable for control or participate in the fees defense or settlement of any Third Party Claim, the Indemnified Party will cooperate in such defense, including giving to the Indemnifying Party and expenses its counsel any relevant powers of attorney and access to, during normal business hours and upon prior written notice from the Indemnifying Party, the relevant business records and other documents, and shall permit them to consult with the employees and counsel employed by of 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 shall use commercially reasonable efforts in the defense of all 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 thereforclaims. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 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: Merger Agreement (Century Electronics Manufacturing Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (the “Indemnified Party”"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 Section 85, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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 that affects generally the business of the Indemnified Party, (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the reasonable, good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 5(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii5(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or but must still obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically (after receipt of reasonable supporting documentation) for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 85 (but subject to Section 5(g)). (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: Asset Purchase Agreement (Incomnet Inc)

Matters Involving Third Parties. (i) If any third party notifies any an Indemnified Party (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 Section 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 actually and materially prejudiced. (ii) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against any and all Losses the Indemnified Party may suffer arising out of or relating to the Third-Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third-Party Claim and fulfill its indemnification obligations hereunder, (C) the Third-Party Claim involves money damages and to the extent the Third-Party Claim does not seek an injunction or other equitable relief and (D) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with Section 6(e)(ii), (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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) and (C) 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). (iv) In the event none any of the conditions in Section 6(e)(ii) is or becomes unsatisfied, upon at least 10 Business Days’ prior written notice to the Indemnifying Parties assumes Party setting forth in reasonable detail the unsatisfied condition and conducts the defense of Basis under which the Third-Indemnified Party Claim in accordance with Section 8(d)(ii) above, howeverbelieves such condition to be unsatisfied, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including attorneys’ fees and expenses) and (C) the Indemnifying Party will remain responsible for any Adverse Consequences Losses the Indemnified Party may suffer resulting from, arising out of, of or relating to, in the nature of, or caused by to the Third-Party Claim to the fullest extent provided in this Section 86. (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: Asset Purchase Agreement (Blount International Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party party (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 Section 84, 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 actually prejudiced, unless the Third Party Claim relates to the representations and materially prejudicedwarranties made by Xxx in Sections 3(B)(f)-(j) and (m)-(v) which must be made within the applicable survival period. (ii) 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 4 above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii4(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (B) 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), and (C) the Indemnifying Party will remain responsible for any 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 Section 84. (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: Asset Transfer Agreement (Viisage Technology Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 8ss.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 actually and materially prejudiced. Any such notice given by LaBaxxx xxxll be given to the OCS Investors. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect and against the entirety of such Third Party Claim and (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the fullest extent provided in this Section 8. (v) If there shall be any conflicts between the provisions continuing business interests 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.the

Appears in 1 contract

Samples: Agreement and Plan of Merger (Labarge Inc)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party (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 Section 8Article VI, then the each Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no a delay on the part of 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) the Indemnifying Party thereby is thereby actually and materially prejudiced. (iib) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 6.4(b), (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6.4(b) aboveis or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party Parties need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (Bii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (iii) the Indemnifying Party will remain responsible for any 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 Section 8Article VI. (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: Regulation S Stock Purchase Agreement (Power Efficiency Corp)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party party (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 Section 8Article 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 actually and materially prejudicedprejudiced by such delay. (iib) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party (it being understood that any Third Party Claim involving a person or entity which is a customer or supplier of the Buyer following the Closing, will be deemed to involve the possibility of such a precedential custom or practice), and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 6.5(b) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6.5(b) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 8Article 6. (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: Asset Purchase Agreement (ICTV Brands Inc.)

Matters Involving Third Parties. The following shall apply to claims asserted against a party by a third party: (i) If any third party notifies shall commence an action against any Indemnified Party (the “Indemnified Party”) with respect to any matter (a “Third-Party Claim”) that which may give rise to a claim for indemnification an Indemnifiable Claim against any other Indemnifying Party (the “Indemnifying Party”) under this Section 8a "Third Party Claim"), then the Indemnified Party shall promptly notify each give to the Indemnifying Party thereof in writingParty, as soon as practicable, a Notice of Claim thereof; provided, however, provided that no delay on the part right of the Indemnified Party to indemnification shall be reduced in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (event of its failure to give timely notice only if and then solely to the extent) extent the Indemnifying Party is thereby actually and materially prejudicedprejudiced thereby. (ii) Any The Indemnifying Party will shall have the right to assume defend the defense of Indemnified Party against the Third-Third Party Claim with counsel of its choice reasonably satisfactory (subject to the reasonable approval of Purchaser) if the Indemnifying Party shall notify the Indemnified Party by providing written notice to in writing (within the Indemnified Party within fifteen (15) days day period after its receipt of a Notice of Claim specifying the Third Party Claim) that it will indemnify the Indemnified Party from and against any Losses the Indemnified Party may suffer arising out of the Third Party Claim, provided, however, if the amount in dispute in respect of such Third Party Claim exceeds the amount of Escrow Indemnity Funds not subject to Unresolved Claims, the party which has the right to control such Third Party Claim shall be the Sellers unless the amount of Escrow Indemnity Funds not subject to Unresolved Claims is less than 50% of such Third Party Claim, in which event Purchaser shall have the right to control the defense of such claim. Neither party shall have the right to settle any such Claim without the consent of the other party, which consent shall not be unreasonably withheld. If the Indemnifying Party does not so notify the Indemnified Party or, after such notification, does not in fact defend the Third Party Claim, the Indemnified Party may defend, compromise or settle the Third Party Claim, preserving its rights to indemnification hereunder, including without limitation for the cost of such defense. Notwithstanding the foregoing, an Indemnified Party shall have the right to employ one law firm as counsel, together with a separate local law firm in each applicable jurisdiction ("Separate Counsel"), to represent such Indemnified Party in any action or group of related actions (which firm or firms shall be reasonably acceptable to the Indemnifying Party) if the Indemnified Party has given notice been advised by counsel that either there is a reasonable likelihood of a conflict of interest between such Indemnified Party and such Indemnifying Party in respect of such claim, or there may be defenses available to such Indemnified Party which are different from or in addition to those available to such Indemnifying Party and the Third-representation of both parties by the same counsel would be inappropriate, and in that event (i) the reasonable fees and expenses of such Separate Counsel shall be considered Losses, and (ii) each of such Indemnifying Party Claim and such Indemnified Party shall have the right to the Indemnifying Party; provided, however, that conduct its own defense in respect of such claim. (iii) If the Indemnifying Party shall conduct is conducting the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume accordance with Section 9.1.5(b) above, then: (i) the defense of such Third-Party Claim. The Indemnified Party may retain separate co-counsel counsel, at its sole cost and expense expenses, and participate in the defense of the Third-Third Party Claim; provided, however, provided 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 defenses available to the Indemnified Party, then the Indemnifying Party shall be liable for have the fees and expenses of counsel employed by the Indemnified Party. The Indemnified Party may take any actions reasonably necessary right to defend such Third Party Claim prior to the time that it receives notice from the Indemnifying Party that it will assume conduct the defense of and, subject to this Section 9.1.5(c), settle such Third Party Claim, and the Indemnifying Party shall reimburse ; (ii) the Indemnified Party for any expenses, including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 Indemnifying Party; (iii) the Indemnified Party shall fully cooperate with the Indemnifying Party in the investigation and defense of such Third Party Claim, including without limitation, providing required information and documents and access to all employees of the Indemnified Party with knowledge of issues relevant to the claim or litigation (and such activities required to discharge this obligation to cooperate shall be considered part of the Losses); and, (iv) the Indemnifying Party shall 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 Indemnified Party (Party, which consent shall not to be unreasonably withheld) withheld or delayed, unless the judgment or proposed such settlement (I) involves only the payment of money damages by one or more of the Indemnifying Parties, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (IIIi) includes a complete and unconditional general release of the Indemnified Party from all liability in respect of such Third Party Claim Claim; (ii) does not require any action or payment on the part of the Indemnified Party; and (IViii) does not include the imposition of any injunctive relief or other equitable remedies against the Indemnified Party. Notwithstanding any other provision of this Section 9.1.5, if an Indemnified Party withholds its consent to a statement settlement or admission elects to continue the defense of fault, culpability or failure any claim where but for such action the Indemnifying Party could have settled such claim solely for the payment of money by the Indemnifying Party as specified in the written request for consent to act by or on behalf of the settlement delivered to the Indemnified Party, and (B) the Indemnifying Party shall indemnify the Indemnified Party will not consent only up to a maximum of the entry of any judgment on or enter into any bona fide settlement with respect to the Third-Party Claim without the prior written consent of offer for which the Indemnifying Party (not to be unreasonably withheld)could have settled such claim. (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 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: Stock Purchase Agreement (Iron Mountain Inc /De)

Matters Involving Third Parties. (i) If any third party notifies will notify any Party (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 Section 8, then the Indemnified Party shall will 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 relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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: Stock Purchase Agreement (Find the World Interactive, Inc.)

Matters Involving Third Parties. (ia) If any third party notifies any Party (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 Section 8, then the Indemnified Party shall will promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay . Delay on the part of the Indemnified Party in notifying any Indemnifying Party shall will not relieve the Indemnifying Party from any their obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby actually and materially prejudiced. (iib) Any 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 the Indemnified Party, so long as (i) the Indemnifying Party by providing written notice to notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will undertake such defense, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8.4(b) of this Agreement, (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none If any of the Indemnifying Parties assumes and conducts the defense conditions in Section 8.4(b) of the Third-Party Claim in accordance with Section 8(d)(ii) above, howeverthis Agreement is not or is no longer satisfied, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party), (ii) subject to the limitations on indemnification set forth in Section 8.5, the Indemnifying Parties will reimburse the Indemnified Party in connection therewithpromptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (Biii) the Indemnifying Parties will remain responsible for any 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 Section 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: Merger Agreement (Lawson Software Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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-Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld), and (C) the Indemnifying 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 Indemnified Party which consent shall not be unreasonably withheld. (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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: Stock Purchase Agreement (Relocate 411 Com Inc /)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 811, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 11(c)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses, including fees (not to be withheld unreasonably) and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii11(c)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 811. (v) If there shall Principal hereby indemnifies the Company against any and all claims that may be filed by Principal or any conflicts between other current or former officer, director or employee of the provisions Company by reason of this Section 8(dthe fact that such person was a director, officer, employee, or agent of the Company or was serving the Company at the request of Principal or the Company as a partner, trustee, director, officer, employee, or agent of another entity, whether such claim is for accrued salary, compensation, indemnification, 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) and Section 9(f) (relating to Tax contests), the provisions of Section 9(f) shall control with respect to Tax contestsany action, suit, proceeding, complaint, claim, or demand brought against the Company (whether such action, suit, proceeding, complaint, claim, or demand is pursuant to an agreement, applicable law, or otherwise).

Appears in 1 contract

Samples: Stock Purchase Agreement (Shentang International, Inc.)

Matters Involving Third Parties. (ia) If any third party (including, without limitation, any Governmental Authority) notifies any Party party (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 Section 8"), then the Indemnified Party shall promptly will notify each Indemnifying Party thereof in writing; provided, however, that no writing within 15 days after receiving such notice. No delay on the part of the Indemnified Party in notifying any Indemnifying Party shall will relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is thereby actually and materially prejudiced. (iib) Any Indemnifying Party will have the right right, at its sole cost and expense, to assume defend the defense of Indemnified Party against the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights diligently. If the Indemnifying Party does not elect to assume control of or otherwise participate in the defense or settlement of any Third Party Claim, it will be bound by the results obtained by the Indemnified Party with respect to the Third Party Claim. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7.3(b) above, (i) 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, and (Bii) 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)., and (iii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii7.3(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (Biii) the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, to or caused by the Third-Third Party Claim to the fullest extent provided in this Section 87. (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: Asset Purchase Agreement (Rentx Industries Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 87, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party diligently conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume Claim. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7(d)(ii), (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii7(d)(ii) aboveis or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 87. (v) If there shall be any conflicts between The Seller represents to the provisions of this Section 8(d) and Section 9(f) (relating to Tax contests), Buyer that the provisions of Section 9(f) shall control Company has retained outside counsel with respect to Tax conteststhird party claims arising from the Shochet Leases, Shochet Equipment Leases and the arbitrations, litigation and customer complaints set forth on Schedule 4(f). Seller acknowledges that claims against the Company and/or its Subsidiaries under the Shochet Leases, Shochet Equipment Leases and the arbitrations, litigation and customer complaints (other than the complaints of Soll and Castillo) set forth on Schedule 4(f) are matters for whixx Xxxxer will have indemnification responsibility pursuant to Section 7(b)(ii). Accordingly, Seller and Buyer acknowledge that it is not necessary for Buyer to provide any notice to Seller under Section 7(d)(ii) to assert an indemnification claim against Seller for those claims that have arisen to date under the Shochet Lease or the Shochet Equipment Leases and Seller shall conduct the defense of the Company and/or its Subsidiaries with respect to such claims, the cost of which shall be apportioned as provided in Section 7(d)(ii).

Appears in 1 contract

Samples: Common Stock Purchase Agreement (Sutter Holding Co Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii7(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 87. (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: Stock Purchase Agreement (Sykes Enterprises Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 811, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect and against the entirety of such Third Party Claim and (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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, (B) the lndemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the fullest extent provided in this Section 8continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (viii) If there shall be So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 11(d)(ii) above, (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, (B) the Indemnified Party will not consent to the entry of 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 judgment or enter into any settlement with respect to Tax conteststhe Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying 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 Indemnified Party (not to be withheld unreasonably). (iv) In the event any of the conditions in Section 11(d)(ii) above is or becomes unsatisfied, however, (A) the Indemnified Party 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 the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying

Appears in 1 contract

Samples: Merger Agreement (Grace Development Inc)

Matters Involving Third Parties. (ia) If any third party notifies any Party Indemnified Buyer or Indemnified Seller (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 Section 86, 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. (iib) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of his, her, or its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen thirty (1530) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with Section 6.4(b) above, (A) the Indemnified Party may retain separate co-counsel at his, her, or 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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 Party, and (not to be unreasonably withheld). (ivC) In the event none of the Indemnifying Parties assumes and conducts Party will not consent to the defense 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. Sellers shall be allowed to use the cash Escrow Amount for reasonable out of pocket legal expenses incurred in accordance with the defense of claims based on breaches of the Limited Survival Representations. (d) In the event any of the conditions in Section 8(d)(ii6.4(b) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, sheher, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 86. (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: Stock Purchase Agreement (Cinedigm Digital Cinema Corp.)

Matters Involving Third Parties. (i) If any third party notifies any Party (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 Section 86, 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. (ii) Any . The Indemnifying Party will shall not have the right to assume conduct the defense of the or compromise and settle any such Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to the Indemnified Party within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying PartyClaim; provided, however, that the any Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter be entitled to participate in order to preserve its rights to assume the defense of such Third-Party Claim. The Claim at such Indemnifying Party’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by appointing reputable counsel reasonably acceptable to the Indemnified Party may retain separate co-to be the lead counsel at its sole cost in connection with such defense; provided that, prior to the Indemnifying Party assuming control of such defense it shall first verify to the Indemnified Party in writing that such Indemnifying Party shall be fully responsible (with no reservation of any rights) for all Liabilities relating to such claim for indemnification and expense that such Indemnifying Party shall provide full indemnification to the Indemnified Party with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder; and provided further, that: (i) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided that the Third-Party Claim; provided, however, that if the representation fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the same Indemnifying Party, and except that the Indemnifying Party shall pay all of the fees and expenses of such separate counsel creates if the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest under applicable standards of professional conduct of attorneys or prejudices between the defenses available to Indemnifying Party and the Indemnified Party, then ); (ii) the Indemnifying Party shall not be liable for entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the fees and expenses of counsel employed retained by the Indemnified Party. The Indemnified Party may take any actions reasonably necessary if (i) the claim for indemnification relates 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 or arises in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) aboveany criminal or quasi criminal proceeding, (A) the Indemnifying Party will not consent to the entry of any judgment on action, indictment, allegation 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, (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 (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 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.investigation;

Appears in 1 contract

Samples: Securities Purchase Agreement

Matters Involving Third Parties. (ia) If any third party notifies any Party (the “an "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 “an "Indemnifying Party") under this Section 89, then the Indemnified Party shall promptly promptly, but in no event more than thirty (30) days following such Indemnified Party's receipt of such third party notification, notify each Indemnifying Party in writing of such claim and the amount or the estimated amount thereof in writing; providedto the extent feasible (which estimate shall not be conclusive of the final amount of such claim or demand). However, however, that no delay on the part of the Indemnified Party in notifying any an Indemnifying Party shall relieve the that Indemnifying Party from any obligation hereunder unless (and then solely to the extentextent that) the Indemnifying Party is thereby actually and materially prejudiced, but in no event shall the Indemnifying Party be liable for expenses incurred prior to its receipt of notice. (iib) Any Indemnifying Party will have the right at its option, to assume defend the defense of Indemnified Party against the Third-Third Party Claim with counsel of its choice the Indemnifying Party's choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Party by providing written notice to notifies the Indemnified Party in writing within fifteen (15) 30 days after the Indemnified Party has given notice of the Third-Third Party Claim to (the Indemnifying Party; provided, however, "Notice Period") that the Indemnifying Party shall conduct is electing to defend the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with reasonable evidence that the Indemnifying Party will have the financial resources to defend the Third Party Claim and fulfill its indemnification obligations hereunder (or that the amount remaining in the Escrow Account is sufficient to meet such indemnification obligations), (iii) there is no conflict of interest created by the Indemnifying Party's choice of counsel, and (iv) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights diligently. An election to assume the defense of such Third-claim or demand shall not be deemed to be an admission that the Indemnifying Party is liable to the Indemnified Party in respect of such claim or demand. All costs and expenses incurred by the Indemnifying Party in defending such claim or demand shall be a liability of, and shall be paid by, the Indemnifying Party. In the event that it is ultimately determined that the Indemnifying Party is not obligated to indemnify, defend or hold the Indemnified Party harmless from and against any third party claim, the Indemnified Party shall reimburse the Indemnifying Party for any and all reasonable costs and expenses (including without limitation, reasonable attorney's fees and court costs) incurred by the Indemnifying Party in its defense of the Third Party Claim. The In the event that the Indemnifying Party notifies the Indemnified Party may retain separate within the Notice Period that it desires to defend the Indemnified Party against such claim or demand, except as hereinafter provided, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings. If a Third Party Claim includes a request for a temporary restraining order or preliminary injunction requiring immediate response or action, the Indemnified Party shall have the right to respond to such Claim as it deems appropriate, and thereafter, counsel appointed by the Indemnifying Party (if it chooses to defend pursuant to this Section 9.4(b)) and the Indemnified Party shall serve as co-counsel at its sole cost and expense and participate in defending the defense Third Party Claim. If the Indemnified Party has a counterclaim against the third party bringing the Third Party Claim that arises from the same transaction or occurrence as the subject matter of the Third-Third Party Claim or is otherwise substantially related to the subject matter of the Third Party Claim; provided, howeverand the Indemnified Party desires to assert and pursue that counterclaim as part of the same proceeding (if any) as the proceeding in which the third party pursues the Third Party Claim, the Indemnified Party shall so notify in writing the Indemnifying Party. In that if the representation of event, the Indemnified Party and the Indemnifying Party by shall fully cooperate in good faith to defend the same counsel creates Third Party Claim and pursue that counterclaim in a conflict of interest under applicable standards of professional conduct of attorneys or prejudices manner that fairly protects their respective interests. If the defenses available Indemnifying Party elects to defend the Third Party Claim and the Indemnified PartyParty desires to participate in, then but not control, any such defense or settlement, it may do so at its sole cost and expense. To the extent the Indemnifying Party shall be liable for control or participate in the fees defense or settlement of any Third Party Claim or demand, the Indemnified Party will give the Indemnifying Party and expenses its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of 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 shall use all commercially reasonable efforts in the defense of all 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 thereforclaims. (iiic) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Third Party Claim in accordance with Section 8(d)(ii) aboveClaim, (A) 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. However, the Indemnified Party (shall not to unreasonably withhold or delay its consent. Moreover, the Indemnified Party's consent shall not be unreasonably withheld) unless required if the judgment or proposed settlement (I) involves only the payment of money damages by one or more of the Indemnifying Parties, (II) does not impose an injunction include any injunctive or other equitable relief upon that binds the Indemnified Party, (III) includes ; the Indemnifying Party is paying 100 percent of any money damages payable to the third party claimant; and the third party delivers a complete and unconditional full release of the Indemnified Party from all liability in respect of such (including its directors, officers and Affiliates) to the Indemnified Party. (d) If the Indemnifying Party does not timely elect to defend the Third Party Claim, the Indemnified Party may elect to defend the Third Party Claim and (IV) does not include a statement or admission of faultthe Indemnifying Party shall be responsible for the reasonable costs and expenses pertaining to such defense. In that case, 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-Third Party Claim without the prior written consent of the Indemnifying Party. However, the Indemnifying Party (shall not to be unreasonably withheld)withhold or delay that consent. (ive) In The Company hereby agrees that any claim for indemnification by the event none of Buyer under this Section 9 shall first be offset against any amount then remaining in the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim Escrow Account, in accordance with Section 8(d)(iithe terms of the Escrow Agreement. (f) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, In no event shall any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain be responsible for any 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 Section 8fees and expenses of more than a single counsel. (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: Asset Purchase Agreement (Rheometric Scientific Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 812, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 12(d)(ii), (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii12(d)(ii) aboveis or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 812. (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: Stock Purchase Agreement (Industrial Electric Services Inc)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party party (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 Section 8Article 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 actually and materially prejudicedprejudiced by such delay. (iib) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 20 days after the Indemnified Party has given written notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party (it being understood that any Third Party Claim involving a person or entity which is a customer or supplier of the Buyer following the Closing, will be deemed to involve the possibility of such a precedential custom or practice), and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 6.5(b) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6.5(b) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 8Article 6. (ve) If there shall be any conflicts between the provisions For purposes of this Section 8(d) 6.5 and Section 9(f) 6.6 below, if the Stockholders, collectively, comprise the Indemnified Party or Indemnifying Party, then in each such case all references to such Indemnified Party or Indemnifying Party, as the case may be (except for provisions relating to Tax contestsan obligation to make or a right to receive any payments), shall be deemed to refer to the provisions Stockholders’ Representative acting on behalf of Section 9(f) shall control with respect to Tax contestssuch Indemnified Party or Indemnifying Party, as applicable.

Appears in 1 contract

Samples: Asset Purchase Agreement (Healing Co Inc.)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party (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 Section 8Article VIII, 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 actually and materially prejudiced. (iib) 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 60 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8.4(b) above, (i) 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 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 (ii) the Indemnified Party for will not consent to the entry of any expensesjudgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, including fees which consent shall not be unreasonably withheld, and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 unreasonably withheld) unless the judgment or proposed settlement (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii8.4(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on judgment, or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (Bii) 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), and (iii) the Indemnifying Party will remain responsible for any 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 Section 8Article VIII. (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: Asset Purchase Agreement (Worksafe Industrial Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. (ii) 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) the 32 37 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (B) 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), and (C) the Indemnifying Party will remain responsible for any 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 Section 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: Asset Purchase Agreement (Bitwise Designs Inc)

Matters Involving Third Parties. (i) If any third party notifies any Party (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 Section 86, 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. (ii) Any . The Indemnifying Party will shall not have the right to assume conduct the defense of the or compromise and settle any such Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to the Indemnified Party within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying PartyClaim; provided, however, that the any Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter be entitled to participate in order to preserve its rights to assume the defense of such Third-Party Claim. The Claim at such Indemnifying Party’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by appointing reputable counsel reasonably acceptable to the Indemnified Party may retain separate co-to be the lead counsel at its sole cost in connection with such defense; provided that, prior to the Indemnifying Party assuming control of such defense it shall first verify to the Indemnified Party in writing that such Indemnifying Party shall be fully responsible (with no reservation of any rights) for all Liabilities relating to such claim for indemnification and expense that such Indemnifying Party shall provide full indemnification to the Indemnified Party with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder; and provided further, that: (i) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided that the Third-Party Claim; provided, however, that if the representation fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the same Indemnifying Party, and except that the Indemnifying Party shall pay all of the fees and expenses of such separate counsel creates if the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest under applicable standards of professional conduct of attorneys or prejudices between the defenses available to Indemnifying Party and the Indemnified Party, then ); (ii) the Indemnifying Party shall not be liable for entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the fees and expenses of counsel employed retained by the Indemnified Party. The Party if (i) the claim for indemnification relates to or arises in connection with any criminal or quasi criminal proceeding, action, indictment, allegation or investigation; (ii) the Indemnified Party may take any actions reasonably necessary to defend such Third Party Claim prior believes an adverse determination with respect to the time action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification could be detrimental to or injure the Indemnified Party’s reputation or future business prospects; (iii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iv) the Indemnified Party has been advised by counsel that it receives notice from a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (v) upon petition by the Indemnified Party an appropriate court rules that it will assume the defense Indemnifying Party failed or is failing to vigorously prosecute or defend such claim; (vi) the claim is with respect to Taxes (and is not otherwise covered by Section 9.1(j) with respect to which party controls), (vii) the Indemnified Party reasonably believes that the Indemnifying Party lacks the financial resources to satisfy any Losses relating to the claim; or (viii) the Indemnified Party reasonably believes that the Loss relating to the claim could exceed the maximum amount that such Indemnified Party could then be entitled to recover under the applicable provisions of such Third Party Claim, and this Section 6; (iii) if the Indemnifying Party shall reimburse control the Indemnified Party for defense of any expensessuch claim, including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 shall obtain the prior written consent of the Indemnified Party (not before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, the Indemnified Party will be unreasonably withheld) unless the judgment or proposed settlement (I) involves only the payment of money damages by one or more of the Indemnifying Partiesobligated to pay any monetary damages, (II) does not impose an injunction injunctive or other equitable relief upon will be imposed against the Indemnified Party, (III) includes a complete Party or such settlement does not expressly and unconditional unconditionally release of the Indemnified Party from all liability in respect of such Third Party Claim and (IV) 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 Liabilities with respect to the Third-Party Claim such claim, without the prior written consent of the Indemnifying Party (not to be unreasonably withheld).prejudice; and (iv) In the event none of if the Indemnifying Parties assumes and conducts Party is not entitled to, or does not, assume control of such defense pursuant to the preceding provisions of this Section, the Indemnified Party shall control such defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) without waiving any right that the Indemnified Party may defend against, and consent to have against the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 indemnification pursuant to the fullest extent provided in this Section 8Section. (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: Securities Purchase Agreement (Red White & Bloom Brands Inc.)

Matters Involving Third Parties. (ia) If any third party notifies any Third Party (the “shall notify a Sellers Indemnified Party”) 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”) Buyer under this Section 811, then the such Sellers Indemnified Party shall promptly notify each Indemnifying Party Buyer thereof in writing; provided, however, provided that no delay on the part of the such Sellers Indemnified Party in notifying any Indemnifying Party Buyer shall relieve the Indemnifying Party Buyer from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party Buyer is thereby actually and materially prejudicedprejudiced thereby. (iib) Any Indemnifying Party will Buyer shall have the right to assume defend the defense of Sellers Indemnified Party against the Third-Third Party Claim with counsel of its choice reasonably satisfactory to the Sellers Indemnified Party by providing so long as (i) within thirty (30) days after receiving such notice, Buyer shall give written notice to the Sellers Indemnified Party within fifteen stating whether it disputes the claim for indemnification and whether it shall defend against any Third Party Claim or liability at its own cost and expense, (15ii) days after the Indemnified Third Party has given notice Claim involves only money damages and does not seek an injunction or other equitable relief and settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Third-Party Claim Sellers Indemnified Party, likely to establish a precedential custom or practice adverse to the Indemnifying continuing business interests of the Sellers Indemnified Party; provided, however, that the Indemnifying Party shall conduct and (iii) Buyer conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve diligently; provided that if the claim is one that cannot by its rights to assume nature be defended solely by Buyer, the Sellers Indemnified Party shall make available all information and assistance reasonably available and necessary for the defense of the Third Party Claim as Buyer may reasonably request and shall cooperate with Buyer, in such Third-defense. (c) So long as Buyer is conducting the defense of the Third Party Claim. The Claim in accordance with Section 11.9(b), (i) the Sellers 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 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 (ii) the Indemnifying Sellers Indemnified 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 35 written consent of the Indemnified Party Buyer (which consent shall not to unreasonably be unreasonably withheld) unless the judgment , conditioned or proposed settlement (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Partydelayed), and (Biii) the Indemnified Party will Buyer shall not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Third Party Claim without unless written agreement is obtained releasing the prior written consent of the Indemnifying Sellers Indemnified Party (not to be unreasonably withheld)from all liability thereunder. (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii11.9(b) aboveis or becomes unsatisfied, however, (Ai) the Sellers Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Sellers Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party Buyer in connection therewith), (ii) Buyer shall reimburse the Sellers Indemnified Party promptly and periodically for the reasonable costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (Biii) the Indemnifying Parties will Buyer shall remain responsible for any Adverse Consequences Losses the Sellers 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 Section 811. (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 and Sale Agreement (Ridgewood Electric Power Trust V)

Matters Involving Third Parties. (ia) If any third party notifies any Party (the “Indemnified Party”) with respect to Practice or Professional Business Manager receives notice or acquires knowledge of any matter (a “Third-Party Claim”) that which may give rise to a claim by another person and which may then result in a claim for indemnification against any other Party (the “Indemnifying Party”) under this Section 8Professional Business Management Agreement, then then: (i) if such notice or knowledge is received or acquired by the Indemnified Party Practice, the Practice shall promptly notify each Indemnifying Party thereof in writingProfessional Business Manager; providedand (ii) if such notice or knowledge is received or acquired by Professional Business Manager, however, the Professional Business Manager shall promptly notify the Practice; except that no delay on the part of the Indemnified Party in notifying any Indemnifying Party giving such notice shall relieve the Indemnifying Party from diminish any obligation hereunder under this Professional Business Management Agreement to provide indemnification unless (and then solely to the extent) the Indemnifying Party from whom such indemnification is thereby actually and materially sought is prejudiced. (iib) Any Party from whom such indemnification (the "Indemnifying Party will Party") is sought shall have the right to assume defend the defense of Party seeking such indemnification (the Third-"Indemnified Party") against such claim by another person (the "Third Party Claim Claim") with counsel of its the Indemnifying Party's choice reasonably satisfactory to the Indemnified Party by providing written notice to the Indemnified Party so long as: (i) within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against all adverse consequences the Indemnified Party may suffer caused by, resulting from, arising out of or relating to such Third Party Claim; (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably satisfactory to the Indemnified Party that the Indemnifying Party has the financial resources necessary to defend against the Third Party Claim and fulfill its indemnification obligations; (iii) the Third Party Claim seeks money damages; (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim (other than an optometric malpractice claim) is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party; and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7.4(b): (i) 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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 Section 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.sole

Appears in 1 contract

Samples: Business Management Agreement (Eye Care Centers of America Inc)

Matters Involving Third Parties. (i) 8.5.1 If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. (ii) 8.5.2 Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 30 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. 8.5.3 So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8.5.2 above, (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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-Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheldwithheld unreasonably), and (C) the Indemnifying 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 39 PAGE consent of the Indemnified Party (not to be withheld unreasonably). (iv) 8.5.4 In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) above8.5.2 above is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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: Stock Purchase Agreement (Thermo Terratech Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 actually and materially prejudiced. . (ii) 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 business days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a presidential custom of practice adverse to the continuing business interests of the (iii) 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 to assume accordance with Section 8(d)(ii) above, (A) 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (B) 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), and (C) the Indemnifying Party will remain responsible for any 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 Section 8. . (v) If there shall be any conflicts between the provisions of this Section 8(d) and Section 9(f) (relating to Tax contestse), the provisions of Section 9(f) shall control with respect to Tax contests.

Appears in 1 contract

Samples: Merger Agreement (Worldport Communications Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 86, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 6(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 8. (v) If there shall be any conflicts between the provisions of this Section 8(d) and Section 9(f) (relating to Tax contests6(b)-6(c), the provisions of Section 9(f) shall control with respect to Tax contests.

Appears in 1 contract

Samples: Asset Purchase Agreement (Interpore International /Ca/)

Matters Involving Third Parties. (ia) If any third party notifies Seller Party or any Buyer Party seeks indemnification under this Article 6, such Person (the “Indemnified Party”) with respect to any matter shall give written notice (a “Third-Party ClaimClaim Notice”) that may give rise to a claim for indemnification against any the other Party Person (the “Indemnifying Party”) under ). In that regard, if any Loss shall be brought or asserted by any third party which, if adversely determined, may entitle the Indemnified Party to indemnity pursuant to this Section 8Article 6 (a “Third Party Claim”), then the Indemnified Party shall promptly notify each deliver a Claim Notice to the Indemnifying Party thereof of the same. Each Claim Notice shall specify in writingdetail the basis of and amount of the Loss contemplated by such Claim Notice (or, if the amount of such Loss is not liquidated, a Good Faith Damages Estimate of such Loss) and the facts pertaining thereto; 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 its obligations hereunder unless (and then solely to the extent) delay in notice has a material adverse effect on the Indemnifying Party is thereby actually and Party’s ability to successfully defend such claim or materially prejudicedincreases the amount of Losses with respect to such claim. (iib) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any Loss (without any limitations) the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim (subject to the limitations contained in this Article 6), (ii) in the event that the Losses related to such Third Party Claim (or the Good Faith Damages Estimate thereof) are more than the amount of any remaining Holdback Funds on the date of the Claim Notice for such Third Party Claim, the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) the Third Party Claim is not a claim asserted directly or on behalf of a Person that is a customer or client of Buyer, (v) the Indemnifying Party actively and diligently conducts the defense of the Third-Third Party Claim, and (vi) if the Third Party Claim actively relates to Taxes, the Third Party Claim would not, in the good faith judgment of the Indemnified Party, materially and diligently thereafter adversely affect the Indemnified Party in order to preserve its rights to assume respect of any Taxes or any Taxable period for which the Indemnifying Party would not be liable hereunder. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 6.4(a) above, (i) 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, and (Bii) 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 be withheld unreasonably) and (iii) except as provided in this Section 6.4(c), the Indemnifying Party will not consent to the entry or any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheldwithheld unreasonably). Notwithstanding the foregoing, if a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such offer within thirty (30) Business Days after its receipt of such notice, the Indemnifying Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. (ivd) In the event none that any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6.4(a) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (Bii) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys’ fees and expenses), and (iii) the Indemnifying Party will remain responsible for any Adverse Consequences 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 Section 86.4 (but subject to the limitations contained in this Article 6). (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: Asset Purchase Agreement (Virtusa Corp)

Matters Involving Third Parties. (i) If any third party notifies any Party Buyer Indemnitee or Seller Indemnitee (the ‘‘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 Section §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 actually and materially prejudiced. (ii) Any Indemnifying Party will have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party both (1) notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Party Claim that the Indemnifying Party will defend the Indemnified Party against the Third-Party Claim (without prejudice to the Indemnifying Party; provided’s further determinations under subpart (d)(ii)(A)(2)) and, however, (2) notifies the Indemnified Party in writing within 45 days after the Indemnified Party has given notice of the Third-Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against any and all Adverse Consequences (to the fullest extent provided in this §8) the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third-Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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 (provided that if such equitable relief or other relief portion of the Third-Party Claim can be separated from that for money damages, the Indemnifying Party shall conduct be entitled to assume the defense of the portion relating to money damages), (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with §8(d)(ii) above, (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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, in its sole discretion, and (C) 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, in its reasonable discretion, (x) if such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all Liability in respect to such claim, (y) if such judgment or settlement would result in the finding or admission of any violation of law or (z) if, as a result of such consent or settlement, injunctive or other equitable relief would be unreasonably withheld)imposed against the Indemnified Party or such judgment or settlement could interfere with or adversely affect the business, operations or assets of the Indemnified Party or any of its Affiliates. (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section §8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, or it may reasonably deems deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party for the costs of defending against the Third-Party Claim (including reasonable attorneys’ fees and expenses) to the fullest extent provided in this §8, and (BC) the Indemnifying Parties will remain responsible for any 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 Section §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: Share Purchase Agreement (Municipal Mortgage & Equity LLC)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (the “Indemnified Party”"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 "INDEMNIFYING Party") under this Section 8, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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: Stock Purchase Agreement (Starbridge Global Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (the “Indemnified Party”"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 Section 8SECTION 9, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (ii) 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with SECTION 9(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of withheld unreasonably); PROVIDED, HOWEVER, the Indemnifying Parties, (II) does Party shall 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 (IV) does not include a statement or admission of fault, culpability or failure be required 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 obtain the prior written consent of the Indemnifying Indemnified Party (not if the settlement unconditionally releases the Indemnified Party from all Liability and obligations with respect to be unreasonably withheld).such Third Party Claim; (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(iiSECTION 9(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any the Indemnifying Party in connection therewith), and (B) 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), and (C) the Indemnifying Party will remain responsible for any 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 Section 89. (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 (Incentra Solutions, Inc.)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (the "Indemnified Party") with respect to any matter (a “Third-"Third Party Claim") that which may give rise to a claim by such Indemnified Party for indemnification against any other Party (the "Indemnifying Party") under this Section 8Agreement, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writingpromptly; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extentextent that) the Indemnifying Party is thereby actually and materially prejudiceddamaged thereby. (ii) Any Indemnifying Party will have the right to assume the defense of the Third-Indemnified Party against the Third Party Claim with counsel of its choice the Indemnifying Party's choice, reasonably satisfactory to the Indemnified Party, so long as (A) the Indemnifying Party by providing written notice to notifies the Indemnified Party Party, within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, Party (or by such earlier date as may be necessary under applicable procedural rules in order to file a timely appearance and response) that the Indemnifying Party shall is assuming the defense of such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in accordance with the terms and limitations of this Section 11(f)(ii) and (B) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (iii) So long as the conditions set forth in Section 11(f)(ii) are and remain satisfied, then (A) the Indemnifying Party may conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume accordance with Section 11(f)(ii); (B) 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, (except 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 defenses available to the Indemnified Party, then the Indemnifying Party shall will be liable responsible for the fees and expenses of the separate co-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 extent the Indemnified Party for any expenses, including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as reasonably concludes that the counsel the Indemnifying Party has assumed and is conducting the defense selected has an actual or potential conflict of the Third-Party Claim in accordance with Section 8(d)(ii) aboveinterest), (A) 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, (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 (IV) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, and (BC) 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, conditioned or delayed), (D) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement, which either imposes an injunction or other equitable relief upon the Indemnified Party or does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, and (E) the Indemnified Party shall, at the Indemnifying Party's reasonable request and at the Indemnifying Party's expense, cooperate in the defense of the matter. In the event that the conditions in Section 11(f)(ii) are not satisfied in the case of any Third Party Claim, then the Indemnified Party may assume control of the defense of such claim; provided that, except as provided in Section 11(f)(ii) below, the Indemnified Party may not enter into any settlement or consent to the entry of any judgment with respect to the matter without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. (iv) In If any injunction or other equitable relief is entered against the event none Indemnified Party during the course of any Third Party Claim, if brought during the Indemnifying Parties assumes Survival Period, and conducts the defense of the Third-such injunction or equitable relief is not removed within ten (10) days (an "Indemnified Party Claim in accordance with Section 8(d)(ii) aboveControlled Claim"), however, then (A) the Indemnified Party may defend againstassume control of the defense of, and and, subject to the provisions of this Section 11(f)(iv), consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), Controlled Claim; and (B) the Indemnifying Parties will remain responsible for any Adverse Consequences in accordance with 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 Section 8. (v) If there shall be any conflicts between the provisions terms and limitations of this Section 8(d) and Section 9(f) (relating to Tax contests11(f), the provisions of Section 9(f) shall control with respect to Tax contests.

Appears in 1 contract

Samples: Merger Agreement (Allscripts Inc /Il)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 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 Indemnified Party thereby is thereby actually and materially prejudiced. (ii) Any Indemnifying Party will shall 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer as provided in Section 8(b)(i) or (ii) above, as may be applicable, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party shall 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business 34 Form 8-K, Exhibit 2 interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8(d)(ii) above, (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; 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 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 (B) the Indemnified Party for any expenses, including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying Party shall 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 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, (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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party Parties need not consult with, or obtain any consent from, any Indemnifying Party Parties in connection therewith), and (B) the Indemnifying Parties will shall reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (C) the Indemnifying Parties shall remain responsible for any 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 Section 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: Merger Agreement (Publishing Co of North America Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 810, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 10 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 10(d)(ii), (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii10(d)(ii) aboveis or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 810. (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: Stock Purchase Agreement (Blink Couture Inc.)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 87, 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen thirty (1530) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 7(d)(ii) above, (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; 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 withheld unreasonably). In the judgment or proposed settlement (I) involves only the payment of money damages by one or more of event the Indemnifying PartiesParty unreasonably withholds consent or delays consent, (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 (IV) 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 may 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 Claim, and the Indemnifying Party (not shall have no power or authority to be unreasonably withheld)object under the Escrow Agreement or any other provision of this Section 7 to the amount paid in such settlement or pursuant to such judgment. (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii7(d)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 87. (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: Stock Purchase Agreement (Authentidate Holding Corp)

Matters Involving Third Parties. (ia) If any third party notifies shall notify any Party (the “Indemnified Party”"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 Section 8Article VI, then the each Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no a delay on the part of 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) the Indemnifying Party thereby is thereby actually and materially prejudiced. (iib) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 6.4(b), (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii6.4(b) aboveis or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party Parties need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (Bii) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (iii) the Indemnifying Party will remain responsible for any 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 Section 8Article VI. (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: Regulation S Stock Purchase Agreement (New Visual Corp)

Matters Involving Third Parties. (ia) If any third party notifies any Party (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 Section 8, Article VIII then the Indemnified Party shall promptly (and in any event within thirty (30) 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 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 actually and materially prejudicedprejudiced by such failure. (iib) Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense or, 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; provided that if the Indemnifying Party is a Company Stockholder, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim (other than a Third Party Claim pursuant to Section 8.02(a)(iii)) that (i) is asserted directly by providing written notice to or on behalf of a Person that is a material supplier or material customer of the Company, (ii) seeks an injunction or other equitable relief against the Indemnified Party within fifteen Parties or (15iii) days after the Indemnified Party has given notice seeks damages in excess of the Third-Party Claim to the Indemnifying PartyIndemnification Escrow Fund; provided, however, further that the Indemnifying Party shall 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 (which consent shall not to be unreasonably withheld, delayed or conditioned) unless the judgment or proposed settlement involves only the payment of money damages and diligently thereafter does not impose an injunction or other equitable relief upon the Indemnified Party, in order to preserve its rights to assume which case no consent will be required; provided, further, that the defense of such Third-Party Claim. 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; providedClaim (it being understood, however, that if the representation of the Indemnified Party and the Indemnifying Party by shall control such defense); provided that if in the same reasonable opinion of counsel creates a conflict of interest under applicable standards of professional conduct of attorneys or prejudices the defenses available to the Indemnified Party, then (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 employed by to the Indemnified Party. The Party in each jurisdiction for which the Indemnified Party may take any actions reasonably necessary determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third Party Claim prior Claim, fails to promptly notify the time that it receives notice from the Indemnifying Indemnified Party that it will assume in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, and the Indemnifying Party shall reimburse the Indemnified Party for any expensesmay pay, including fees and expenses of counselcompromise, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 defend such Third Party Claim and (IV) does seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. If the Indemnifying Party assumes the defense of any Third Party Claim, then such assumption shall be deemed an admission that such claim is an indemnified obligation hereunder and the Indemnifying Party may not include a statement or admission of fault, culpability or failure to act by or on behalf of thereafter contest the Indemnified Party’s right to indemnification for the claims asserted therein. Solely in the case of Third Party Claims pursuant to Section 8.02(a)(iii), if an Indemnifying Party assumes and 45 (Bc) the The Indemnified Party (i) will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim not, without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld, conditioned or delayed). (iv) In , cause or agree to the event none waiver of the attorney-client privilege, attorney work-product immunity or any other privilege or protection in respect of confidential legal memoranda and other privileged materials drafted by, or otherwise reflecting the legal advice of, internal or outside counsel of an Indemnified Party (the “Subject Materials”) relating to such Third Party Claim and (ii) will cooperate with the Indemnifying Parties assumes Party and conducts its counsel in the review, investigation and defense of the Third-Party Claim in accordance with Section 8(d)(ii) aboveany such claim or any related claim or counterclaim, however, (A) the Indemnified Party may defend againstshall 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, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith). In furtherance of the foregoing, each Party mutually acknowledges and agrees, on behalf of itself and its Affiliates, that (BA) each shares a common legal interest in preparing for the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting fromdefense of legal proceedings, or potential legal proceedings, arising out of, relating toto or in respect of any actual or threatened Third Party Claim or any related claim or counterclaim, in (B) the nature ofsharing of Subject Materials will further such common legal interest and (C) by disclosing any Subject Materials to and/or sharing any Subject Materials with the Indemnifying Party, the Indemnified Party shall not waive the attorney-client privilege, attorney work-product immunity or caused any other privilege or protection. Except with respect to any sharing of Subject Materials as permitted hereunder or as contemplated by any common interest agreement or joint defense agreement entered into by the Third-Parties, the Indemnified Party Claim shall not be required to make available to the fullest extent provided in this Section 8Indemnifying Party any information that is subject to an attorney-client or other applicable legal privilege that based on the advice of outside counsel would be impaired by such disclosure or any confidentiality restriction under applicable Law; provided, however, that each Party shall use its commercially reasonable efforts to permit the Indemnifying Party to become party to any joint defense or common interest agreement entered into by an Indemnified Party with any third Person. (vd) If there Notwithstanding anything in this Agreement to the contrary, as promptly as reasonably practicable following receipt by the Parent of (i) notice of a Third Party Claim, the Parent shall, and shall be cause the Company to, use commercially reasonable efforts to retain documents that are then within the Parent’s or the Company’s possession or control and reasonably related to such Third Party Claim for a period of time that the Stockholders’ Representative reasonably determines, in consultation with the Parent, after taking into account all relevant facts and circumstances related to the Third Party Claim that is the subject of such notice, or (ii) a written notice by the Stockholders’ Representative of a demand or inquiry by a Governmental Entity, or subpoena or other legal process served by any conflicts between the provisions of this Section 8(d) and Section 9(f) (Person, relating to Tax contests)the Company, the provisions of Section 9(f) Parent shall, and shall cause the Company to, use commercially reasonable efforts to retain documents that are then within the Parent’s or the Company’s possession or control with respect and reasonably related to Tax contests.such information, demand or inquiry or such subpoena or other legal process for the time period that the Stockholders’ Representative reasonably determines, in 46

Appears in 1 contract

Samples: Merger Agreement (Neogenomics Inc)

Matters Involving Third Parties. (i) Section 9.4.1 If any third party notifies any Party (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 Section 8§9.4, 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 is thereby actually and materially prejudiced. (ii) Section 9.4.2 Any Indemnifying Party will shall have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably [reasonably] satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. Section 9.4.3 So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with §9.4.2 above, (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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 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)] and (C) the Indemnifying Party 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). (iv) Section 9.4.4 In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) above§9.4.2 above is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, or it may reasonably deems deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable]attomeys' fees and expenses), and (C) the Indemnifying Parties will shall remain responsible for any Adverse Consequences 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 Section 8Article IX. (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: Asset Purchase Agreement (Epazz Inc)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (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 Section 87, 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 prejudicedprejudiced thereby. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of indemnify the Indemnified Party from all liability in respect and against the entirety of such Third Party Claim and (IV) 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). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-Party Claim in any manner he, she, or it reasonably deems appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will remain responsible for any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim to and fulfill its indemnification obligations hereunder, (C) the fullest extent provided in this Section 8. Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (vD) If there shall be any conflicts between the provisions of this Section 8(d) and Section 9(f) (relating to Tax contests)settlement of, or an adverse judgment with respect to, the provisions Third Party Claim is not, in the good faith judgment of Section 9(f) shall control with respect the Indemnified Party, likely to Tax contests.establish a precedential custom or practice materially adverse

Appears in 1 contract

Samples: Stock Purchase Agreement (Glacier Corp)

Matters Involving Third Parties. (i) 8.2.1 If any third party notifies any shall notify either Party (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 Section 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 actually and materially prejudiced. (ii) Any 8.2.2 An 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety of any 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) such equitable relief sought by the Third Party Claim, if any, would not, if granted, result in a material adverse effect on the Indemnified Party's business, and (iv) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. 8.2.3 So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 8.2.2 above, (i) 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 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 (ii) 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 shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably). (iv) 8.2.4 In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii) above8.2.2 above is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any the consent from, any of the Indemnifying Party in connection therewith), and (Bii) 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), and (iii) the Indemnifying Party will remain responsible for any 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 Section 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: Stock Purchase Agreement (Officeland Inc)

Matters Involving Third Parties. (ia) If any third party notifies Third Party shall notify any Party (the “Indemnified Party”"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 Section 89, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (iib) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (iv) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The -44- Claim in accordance with Section 9.5(b) above, (i) 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 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 (ii) 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 (which consent shall reimburse the Indemnified Party for any expensesnot unreasonably be withheld), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of agreement is obtained releasing the Indemnified Party from all liability in respect of such Third Party Claim and (IV) 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)thereunder. (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii9.5(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (Bii) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses, notwithstanding Section 9.3), and (iii) the Indemnifying Party will remain responsible for any Adverse Consequences 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 Section 89. (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 and Sale Agreement (Northeast Generation Co)

Matters Involving Third Parties. (i) If any third party notifies any Party entitled to indemnification hereunder (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 Section 8§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 is thereby actually and materially prejudiced. (ii) Any Indemnifying Party will shall have the right to assume defend the defense of Indemnified Party against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct indemnify the Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (iii) So long as the Indemnifying Party is conducting the defense of such the Third-Party Claim. The Claim in accordance with §6(d)(ii), (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; 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 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. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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, (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 (IV) 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 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), and (C) the Indemnifying Party 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). (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii§6(d)(ii) aboveis or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such the Third-Party Claim in any manner he, she, or it may reasonably deems deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (B) the Indemnifying Parties will shall reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable attorneys’ fees and expenses), and (C) the Indemnifying Parties shall remain responsible for any 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 Section 8§6. (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: Asset Purchase Agreement (Professional Diversity Network, Inc.)

Matters Involving Third Parties. (ia) If any third party notifies Third Party shall notify any Party (the “Indemnified Party”"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 Section 89, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; providedPROVIDED, howeverHOWEVER, 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 actually and materially prejudiced. (iib) Any 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 the Indemnified Party by providing written notice to so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the Indemnified Party from and against the entirety 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, (ii) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (iv) the Indemnifying Party conducts the defense of the Third-Third Party Claim actively and diligently thereafter in order to preserve its rights to assume diligently. (c) So long as the Indemnifying Party is conducting the defense of such Third-the Third Party Claim. The Claim in accordance with Section 9.5(b) above, (i) 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 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 (ii) 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 (which consent shall reimburse the Indemnified Party for any expensesnot unreasonably be withheld), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (A) 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 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, (II) does not impose an injunction or other equitable relief upon the Indemnified Party, (III) includes a complete and unconditional release of agreement is obtained releasing the Indemnified Party from all liability in respect of such Third Party Claim and (IV) 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)thereunder. (ivd) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii9.5(b) aboveabove is or becomes unsatisfied, however, (Ai) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), and (Bii) the Indemnifying Parties Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses, notwithstanding Section 9.3), and (iii) the Indemnifying Party will remain responsible for any Adverse Consequences 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 Section 89. (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 and Sale Agreement (Northeast Generation Co)

Matters Involving Third Parties. (i) If any third party notifies shall notify any Party (the “Indemnified Party”"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 Section 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 actually and materially prejudiced. (ii) Any 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 the Indemnified Party by providing written notice to so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) 15 days after the Indemnified Party has given notice of the Third-Third Party Claim to the Indemnifying Party; provided, however, that the Indemnifying Party shall conduct will indemnify the defense Indemnified Party from and against the entirety of any 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, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party 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) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Third-Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defence of the Third Party Claim actively and diligently thereafter diligently. (iii) So long as the Indemnifying Party is conducting the defence of the Third Party Claim in order to preserve its rights to assume accordance with Section 8(e)(ii) above, (A) 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 defence 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 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 (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 without the prior written consent of the Indemnifying Party shall reimburse the Indemnified Party for any expenses(not to be withheld unreasonably), including fees and expenses of counsel, incurred in connection with such defense promptly upon written request therefor. (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 8(d)(ii) above, (AC) 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 (I) involves only the payment of money damages by one or more of the Indemnifying 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 (IV) 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 withheldwithheld unreasonably).. 44 -44- (iv) In the event none any of the Indemnifying Parties assumes and conducts the defense of the Third-Party Claim conditions in accordance with Section 8(d)(ii8(e)(ii) aboveabove is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to, such Third-the Third Party Claim in any manner he, she, or it reasonably deems may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (BC) the Indemnifying Parties will remain responsible for any 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 Section 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: Units Purchase Agreement (Kendle International Inc)