Notice and Payment. (a) Promptly after acquiring knowledge of any damage, loss, deficiency, liability, encumbrances, penalty, cost, expense, action, suit, investigation, proceeding, assessment, audit, judgment, or claim against which Aviron or PCI must indemnify the other pursuant to Section 9.1 (the "Indemnifying Party"), the Indemnified Party shall give to the Indemnifying Party written notice thereof, specifying the nature of the claim for indemnity (the "Claim Notice"); provided, however, that the delay or failure to give a Claim Notice shall not be a bar to indemnification hereunder, except and to the extent that the indemnifying Party is materially prejudiced by the delay or failure to give such Claim Notice. (b) With respect to any claim, action, suit, investigation, proceedings, demand, assessment or audit brought by a Third Party ("Third Party Matter"), the Indemnifying Party shall have the right, at its own expense, to contest and defend against or attempt to settle or compromise (subject to the limitations set forth below), such Third Party Matter and any damages, losses, deficiencies, liabilities, encumbrances, penalties, costs, expenses and assessments ("Damages") resulting therefrom. If the Indemnifying Party so elects, such defense shall be instituted promptly and the Indemnifying Party shall receive from the Indemnified Party all necessary and reasonable cooperation in said defense. If the [*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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Samples: Production Agreement (Aviron), Production Agreement (Aviron)
Notice and Payment. (a) Promptly after acquiring knowledge of any damage, loss, deficiency, liability, encumbrances, penalty, cost, expense, action, suit, investigation, proceeding, assessment, audit, judgment, or claim against which Aviron or PCI must indemnify the other A Party entitled to indemnification pursuant to Section 9.1 8.1 or 8.2 hereof (an "Indemnified Party") shall give written notice to the Party responsible for indemnification pursuant to Sections 8.1 or 8.2 hereof (an "Indemnifying Party") of any claim, suit, liability or demand which gives rise to indemnification by an Indemnifying Party pursuant to this Agreement (hereinafter referred to as an "Indemnification Notice"); it being specifically understood that if and to the extent any such claim is based upon a beach of any such Party's representations and/or warranties made herein, such notice shall be given to the other Party(ies) within a maximum period of twelve (12) months following the Closing Date, which notice shall have the effect of tolling the twelve (12) month survival period of such representations and warranties until the final, binding disposition of any claims with respect thereto. Such Indemnification Notice shall describe the claim in reasonable detail and shall indicate the amount (estimated if necessary) of the Loss that has been or may be sustained by the Indemnified Party.
8.3.1 With respect to third party claims, the Indemnifying Party may elect to compromise or defend, at its own expense and by its own counsel, any matter involving the asserted liability of the Indemnifying Party so long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to compromise or defend such asserted liability, the Indemnifying Party shall, within 15 days (or sooner, if the nature of the asserted liability so requires) notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, any such asserted liability. Notwithstanding the foregoing, the Indemnified Party shall give have the right to participate in any matter through counsel of its own choosing at its own expense; provided that the Indemnifying Party's counsel shall be lead counsel. After the Indemnifying Party written notice thereofshall have notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, specifying and for so long as the nature Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability, except to the extent such participation is requested by the Indemnifying Party, in which event the Indemnified Party shall be reimbursed by the Indemnifying Party for reasonable additional legal expenses, out-of-pocket expenses and allocable share of employee compensation incurred in connection with such participation for any employee whose participation is so requested. If the Indemnifying Party desires to accept a final and complete reasonable settlement of asserted liability and the Indemnified Party refuses to consent to such reasonable settlement, then the Indemnified Party's liability under this Article 8 with respect to such asserted liability shall be limited to the amount so offered (and accepted) in settlement and the Indemnified Party shall reimburse the Indemnifying Party for any additional costs of defense which it subsequently incurs with respect to such claim.
8.3.2 If the Indemnifying Party does not undertake to defend such matter to which the Indemnified Party is entitled to indemnification hereunder, or fail to diligently pursue such defense, the Indemnified Party may undertake such defense through counsel of its own choice, at the cost and expense of the claim Indemnifying Party, and the Indemnified Party may settle such matter, and the Indemnifying Party shall reimburse the Indemnified Party for indemnity (the "Claim Notice")amount paid in such settlement and any other liabilities or expenses incurred by the Indemnified Party in connection therewith; provided, however, that the delay or failure to give a Claim Notice Indemnified Party shall not settle any such claim without the written consent of the Indemnifying Party, which consent shall not be a bar to indemnification hereunder, except and to the extent that the indemnifying Party is materially prejudiced unreasonably withheld or delayed.
8.3.3 All sums paid by the delay or failure to give such Claim Notice.
(b) With respect to any claim, action, suit, investigation, proceedings, demand, assessment or audit brought by a Third Indemnified Party ("Third Party Matter"), for which the Indemnifying Party shall have the right, at its own expense, is obligated to contest and defend against or attempt to settle or compromise (subject to the limitations set forth below), such Third Party Matter and any damages, losses, deficiencies, liabilities, encumbrances, penalties, costs, expenses and assessments ("Damages") resulting therefrom. If the Indemnifying Party so elects, such defense shall be instituted promptly and the Indemnifying Party shall receive from reimburse the Indemnified Party all necessary and reasonable cooperation under this Article 8 (together with interest thereon from the date of the Indemnified Party's payment of any amounts until paid in said defense. If full, computed at the [*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSrate of 8% per annum) shall be paid within ten days of demand with interest calculated at the maximum rate allowed under New York State law.
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Notice and Payment. A Party entitled to indemnification pursuant to Section 8.1 or 8.2 hereof (aan “Indemnified Party”) Promptly after acquiring knowledge shall give written notice to the Party responsible for indemnification pursuant to Sections 8.1 or 8.2 hereof (an “Indemnifying Party”) of any damage, loss, deficiency, liability, encumbrances, penalty, cost, expense, actionclaim, suit, investigationliability or demand which gives rise to indemnification by an Indemnifying Party pursuant to this Agreement (hereinafter referred to as an "Indemnification Notice"). Such Indemnification Notice shall describe the claim in reasonable detail and shall indicate the amount (estimated if necessary) of the loss that has been or may be sustained by the Indemnified Party (the amount of each such amount claim being the “Indemnification Claim Amount”, proceedingand collectively, assessmentthe “Indemnification Claims Amount”). The Indemnifying Party shall have ten (10) days following its receipt of the Indemnification Notice to dispute, auditin writing, judgmentthe basis of the Indemnification Claim and/or the Indemnification Claim Amount that is the subject of the Indemnification Notice (each an “Dispute Notice”), TIME BEING OF THE ESSENCE, which Dispute Notice shall set forth, in reasonable detail, the basis upon which the Indemnifying Party is disputing the Indemnification Claim and/or the Indemnification Claim Amount that is the subject of the Indemnification Notice. In the event that the Indemnifying Party shall fail to timely provide the Dispute Notice to the Indemnified Party, then the Indemnifying Party shall be deemed to be conclusively liable in respect of the Indemnification Claim (to the extent of the Indemnification Claim Amount), and shall be deemed to have waived there right to dispute the same.
8.3.1 With respect to third party claims, the Indemnifying Party may elect to compromise or defend, at its own expense and by its own counsel, any matter involving the asserted liability of the Indemnifying Party so long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to compromise or defend such asserted liability, the Indemnifying Party shall, within 15 days (or sooner, if the nature of the asserted liability so requires) notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or claim against which Aviron or PCI must indemnify defense against, any such asserted liability. Notwithstanding the other pursuant to Section 9.1 (the "Indemnifying Party")foregoing, the Indemnified Party shall give have the right to participate in any matter through counsel of its own choosing at its own expense; provided that the Indemnifying Party’s counsel shall be lead counsel. After the Indemnifying Party written notice thereofshall have notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, specifying and for so long as the nature Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability, except to the extent such participation is requested by the Indemnifying Party, in which event the Indemnified Party shall be reimbursed by the Indemnifying Party for reasonable additional legal expenses, out-of-pocket expenses and allocable share of employee compensation incurred in connection with such participation for any employee whose participation is so requested. If the Indemnifying Party desires to accept a final and complete reasonable settlement of asserted liability and the Indemnified Party refuses to consent to such reasonable settlement, then the Indemnified Party’s liability under this Article 8 with respect to such asserted liability shall be limited to the amount so offered (and accepted) in settlement and the Indemnified Party shall reimburse the Indemnifying Party for any additional costs of defense which it subsequently incurs with respect to such claim.
8.3.2 If the Indemnifying Party does not undertake to defend such matter to which the Indemnified Party is entitled to indemnification hereunder, or fail to diligently pursue such defense, the Indemnified Party may undertake such defense through counsel of its own choice, at the cost and expense of the claim Indemnifying Party, and the Indemnified Party may settle such matter, and the Indemnifying Party shall reimburse the Indemnified Party for indemnity (the "Claim Notice")amount paid in such settlement and any other liabilities or expenses incurred by the Indemnified Party in connection therewith; provided, however, that the delay or failure to give a Claim Notice Indemnified Party shall not settle any such claim without the written consent of the Indemnifying Party, which consent shall not be a bar to indemnification hereunder, except and to the extent that the indemnifying Party is materially prejudiced unreasonably withheld or delayed.
8.3.3 All sums paid by the delay or failure to give such Claim Notice.
(b) With respect to any claim, action, suit, investigation, proceedings, demand, assessment or audit brought by a Third Indemnified Party ("Third Party Matter"), for which the Indemnifying Party shall have the right, at its own expense, is obligated to contest and defend against or attempt to settle or compromise (subject to the limitations set forth below), such Third Party Matter and any damages, losses, deficiencies, liabilities, encumbrances, penalties, costs, expenses and assessments ("Damages") resulting therefrom. If the Indemnifying Party so elects, such defense shall be instituted promptly and the Indemnifying Party shall receive from reimburse the Indemnified Party all necessary and reasonable cooperation under this Article 8 (together with interest thereon from the date of the Indemnified Party’s payment of any amounts until paid in said defense. If full) shall be paid within ten days of demand with interest calculated at the [*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSmaximum rate allowed under the laws of the Province of Ontario.
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Samples: Business Acquisition Agreement (Emerging Vision Inc)
Notice and Payment. A Party entitled to indemnification pursuant to Section 8.1 or 8.2 hereof (aan “Indemnified Party”) Promptly after acquiring knowledge shall give written notice to the Party responsible for indemnification pursuant to Sections 8.1 or 8.2 hereof (an “Indemnifying Party”) of any damage, loss, deficiency, liability, encumbrances, penalty, cost, expense, actionclaim, suit, investigationliability or demand which gives rise to indemnification by an Indemnifying Party pursuant to this Agreement (hereinafter referred to as an "Indemnification Notice"). Such Indemnification Notice shall describe the claim in reasonable detail and shall indicate the amount (estimated if necessary) of the loss that has been or may be sustained by the Indemnified Party.
8.3.1 With respect to third party claims, proceedingthe Indemnifying Party may elect to compromise or defend, assessmentat its own expense and by its own counsel, auditany matter involving the asserted liability of the Indemnifying Party so long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to compromise or defend such asserted liability, judgmentthe Indemnifying Party shall, within 15 days (or sooner, if the nature of the asserted liability so requires) notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or claim against which Aviron or PCI must indemnify defense against, any such asserted liability. Notwithstanding the other pursuant to Section 9.1 (the "Indemnifying Party")foregoing, the Indemnified Party shall give have the right to participate in any matter through counsel of its own choosing at its own expense; provided that the Indemnifying Party’s counsel shall be lead counsel. After the Indemnifying Party written notice thereofshall have notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, specifying and for so long as the nature Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability, except to the extent such participation is requested by the Indemnifying Party, in which event the Indemnified Party shall be reimbursed by the Indemnifying Party for reasonable additional legal expenses, out-of-pocket expenses and allocable share of employee compensation incurred in connection with such participation for any employee whose participation is so requested. If the Indemnifying Party desires to accept a final and complete reasonable settlement of asserted liability and the Indemnified Party refuses to consent to such reasonable settlement, then the Indemnified Party’s liability under this Article 8 with respect to such asserted liability shall be limited to the amount so offered (and accepted) in settlement and the Indemnified Party shall reimburse the Indemnifying Party for any additional costs of defense which it subsequently incurs with respect to such claim.
8.3.2 If the Indemnifying Party does not undertake to defend such matter to which the Indemnified Party is entitled to indemnification hereunder, or fail to diligently pursue such defense, the Indemnified Party may undertake such defense through counsel of its own choice, at the cost and expense of the claim Indemnifying Party, and the Indemnified Party may settle such matter, and the Indemnifying Party shall reimburse the Indemnified Party for indemnity (the "Claim Notice")amount paid in such settlement and any other liabilities or expenses incurred by the Indemnified Party in connection therewith; provided, however, that the delay or failure to give a Claim Notice Indemnified Party shall not settle any such claim without the written consent of the Indemnifying Party, which consent shall not be a bar to indemnification hereunder, except and to the extent that the indemnifying Party is materially prejudiced unreasonably withheld or delayed.
8.3.3 All sums paid by the delay or failure to give such Claim Notice.
(b) With respect to any claim, action, suit, investigation, proceedings, demand, assessment or audit brought by a Third Indemnified Party ("Third Party Matter"), for which the Indemnifying Party shall have the right, at its own expense, is obligated to contest and defend against or attempt to settle or compromise (subject to the limitations set forth below), such Third Party Matter and any damages, losses, deficiencies, liabilities, encumbrances, penalties, costs, expenses and assessments ("Damages") resulting therefrom. If the Indemnifying Party so elects, such defense shall be instituted promptly and the Indemnifying Party shall receive from reimburse the Indemnified Party all necessary and reasonable cooperation under this Article 8 (together with interest thereon from the date of the Indemnified Party’s payment of any amounts until paid in said defense. If full) shall be paid within ten days of demand with interest calculated at the [*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSmaximum rate allowed under New York State law.
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Notice and Payment. (a) Promptly after acquiring knowledge of any damage, loss, deficiency, liability, encumbrances, penalty, cost, expense, action, suit, investigation, proceeding, assessment, audit, judgment, or claim against which Aviron MedImmune or PCI Cardinal Health must indemnify the other pursuant to Section 9.1 (the "Indemnifying Party"), the Indemnified Party shall give to the Indemnifying Party written notice thereof, specifying the nature of the claim for indemnity (the "Claim Notice"); provided, however, that the delay or failure to give a Claim Notice shall not be a bar to indemnification hereunder, except and to the extent that the indemnifying Party is materially prejudiced by the delay or failure to give such Claim Notice.
(b) With respect to any claim, action, suit, investigation, proceedings, demand, assessment or audit brought by a Third Party ("Third Party Matter"), the Indemnifying Party shall have the right, at its own expense, to contest and defend against or attempt to settle or compromise (subject to the limitations set forth below), such Third Party Matter and any damages, losses, deficiencies, liabilities, encumbrances, penalties, costs, expenses and assessments ("Damages") resulting therefrom. If the Indemnifying Party so elects, such defense shall be instituted promptly and the Indemnifying Party shall receive from the Indemnified Party all necessary and reasonable cooperation in said defense. If the [*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSIndemnifying Party is successful in respect of any counterclaim asserted by it in defending a Third Party Matter, any sums recovered shall first be applied to reimburse the Indemnifying Party for its reasonable out-of-pocket expenses in connection therewith, and any sums in excess of such amount shall be paid to the Indemnified Party.
(c) In the event that an Indemnifying Party, after written notice from the Indemnified Party, elects not to defend the same or fails to so notify the Indemnified Party within thirty (30) days of the giving of the Claim Notice, the Indemnifying Party shall be deemed to have elected not to defend and if the Indemnified Party elects to contest and defend against such claim, it shall have the right to do so with counsel of its own choosing, at the cost and expense of the Indemnifying Party.
(d) Neither the Indemnified Party nor the Indemnifying Party shall have the right to settle, compromise or make payment with respect to any claim, demand, or litigation without the written consent of the other Party, except that the Indemnified Party shall have the right to settle, compromise or make payment with respect to any claim, demand, or litigation against it without such consent if it has given a Claim Notice to the Indemnifying Party, and (i) the Indemnifying Party has elected, or shall be deemed to have elected, not to defend the same or (ii) the Indemnifying Party fails to promptly attempt to settle or compromise the claim.
Appears in 1 contract
Notice and Payment. (a) Promptly after acquiring knowledge of any damage, loss, deficiency, liability, encumbrances, penalty, cost, expense, action, suit, investigation, proceeding, assessment, audit, judgment, or claim against which Aviron or PCI must indemnify the other pursuant to Section 9.1 (the "Indemnifying PartyINDEMNIFYING PARTY"), the Indemnified Party shall give to the Indemnifying Party written notice thereof, specifying the nature of the claim for indemnity (the "Claim NoticeCLAIM NOTICE"); provided, however, that the delay or failure to give a Claim Notice shall not be a bar to indemnification hereunder, except and to the extent that the indemnifying Party is materially prejudiced by the delay or failure to give such Claim Notice.
(b) With respect to any claim, action, suit, investigation, proceedings, demand, assessment or audit brought by a Third Party ("Third Party MatterTHIRD PARTY MATTER"), the Indemnifying Party shall have the right, at its own expense, to contest and defend against or attempt to settle or compromise (subject to the limitations set forth below), such Third Party Matter and any damages, losses, deficiencies, liabilities, encumbrances, penalties, costs, expenses and assessments ("DamagesDAMAGES") resulting therefrom. If the Indemnifying Party so elects, such defense shall be instituted promptly and the Indemnifying Party shall receive from the Indemnified Party all necessary and reasonable cooperation in said defense. If the [*]= [ * ] = CERTAIN CONFIDENTIAL INFORMATION ON CONTAINED IN THIS PAGE DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE OMITTED PORTIONSSECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Appears in 1 contract
Samples: Production Agreement (Aviron)
Notice and Payment. (a) Promptly after acquiring knowledge of any damage, loss, deficiency, liability, encumbrances, penalty, cost, expense, action, suit, investigation, proceeding, assessment, audit, judgment, or claim against which Aviron MedImmune or PCI Cardinal Health must indemnify the other pursuant to Section 9.1 (the "“Indemnifying Party"”), the Indemnified Party shall give to the Indemnifying Party written notice thereof, specifying the nature of the claim for indemnity (the "“Claim Notice"”); provided, however, that the delay or failure to give a Claim Notice shall not be a bar to indemnification hereunder, except and to the extent that the indemnifying Party is materially prejudiced by the delay or failure to give such Claim Notice.
(b) With respect to any claim, action, suit, investigation, proceedings, demand, assessment or audit brought by a Third Party ("“Third Party Matter"”), the Indemnifying Party shall have the right, at its own expense, to contest and defend against or attempt to settle or compromise (subject to the limitations set forth below), such Third Party Matter and any damages, losses, deficiencies, liabilities, encumbrances, penalties, costs, expenses and assessments ("“Damages"”) resulting therefrom. If the Indemnifying Party so elects, such defense shall be instituted promptly and the Indemnifying Party shall receive from the Indemnified Party all necessary and reasonable cooperation in said defense. If the [*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSIndemnifying Party is successful in respect of any counterclaim asserted by it in defending a Third Party Matter, any sums recovered shall first be applied to reimburse the Indemnifying Party for its reasonable out-of-pocket expenses in connection therewith, and any sums in excess of such amount shall be paid to the Indemnified Party.
(c) In the event that an Indemnifying Party, after written notice from the Indemnified Party, elects not to defend the same or fails to so notify the Indemnified Party within thirty (30) days of the giving of the Claim Notice, the Indemnifying Party shall be deemed to have elected not to defend and if the Indemnified Party elects to contest and defend against such claim, it shall have the right to do so with counsel of its own choosing, at the cost and expense of the Indemnifying Party.
(d) Neither the Indemnified Party nor the Indemnifying Party shall have the right to settle, compromise or make payment with respect to any claim, demand, or litigation without the written consent of the other Party, except that the Indemnified Party shall have the right to settle, compromise or make payment with respect to any claim, demand, or litigation against it without such consent if it has given a Claim Notice to the Indemnifying Party, and (i) the Indemnifying Party has elected, or shall be deemed to have elected, not to defend the same or (ii) the Indemnifying Party fails to promptly attempt to settle or compromise the claim.
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