Common use of Notice; Defense of Claims Clause in Contracts

Notice; Defense of Claims. Subject to the terms of this Section 9.05, any Purchaser Indemnified Party or Seller Indemnified Party (collectively, the “Indemnified Parties”, or each individually, an “Indemnified Party”) may make claims for indemnification hereunder by giving prompt written notice thereof to the Seller, in the case of claims made by a Purchaser Indemnified Party, or to Purchaser, in the case of claims made by a Seller Indemnified Party. If indemnification is sought for a claim by or in respect of any Third Party, the Indemnified Party shall also give Seller or Purchaser, as the applicable Indemnifying Party, written notice of such claim as to which such Indemnified Party may request indemnification hereunder as soon as is practicable and in any event within [***] of the time that such Indemnified Party learns of such claim; provided, however, that the failure to do so shall not relieve the party with the indemnification obligation hereunder (each an “Indemnifying Party”, and collectively, the “Indemnifying Parties”) from any Liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state all of the information then available regarding the amount and nature of such claim and shall specify the representation, warranty or covenant, or Excluded Liability or Assumed Liability, in this Agreement under which the Liability is asserted. In the case of any Third Party claim, Seller or Purchaser, whichever is the Indemnifying Party, shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim at its own expense (subject to the limitations set forth in this Article IX). If Seller or Purchaser, as applicable, elects to assume the defense of any such claim, Seller or Purchaser, as applicable, shall consult with the Indemnified Party for the purpose of allowing the Indemnified Party to participate in such defense. If Seller or Purchaser, as applicable, elects not to defend or if, after commencing or undertaking any such defense, Seller or Purchaser, as applicable, fails to diligently prosecute or withdraws from such defense, the Indemnified Party shall have the right to undertake the defense. The Indemnifying Party shall not be entitled to assume control of such defense if (i) the third-party claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation, investigation or any other matter involving a Governmental Entity; (ii) the third-party claim seeks an injunction or equitable relief against the Indemnified Party; or (iii) other than with respect to a claim under Section 9.01(d), the Indemnifying Party is Seller and the Third Party claim is asserted directly by or on behalf of a Person that is a supplier or customer of the Business. If Seller or Purchaser, as applicable, does not so assume control of such defense, the Indemnified Party shall be the Controlling Party. The party not controlling such defense (the “Non-controlling Party,” and the party controlling such defense, the “Controlling Party”) may participate therein at its own expense, which expense shall not be recoverable as part of any indemnification claim; provided that, if the Non-controlling Party is the Indemnified Party, if in the reasonable written opinion of counsel there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, then the Indemnifying Party shall be liable for the reasonable fees and expenses of one counsel to the Indemnified Party in connection with such defense (but only to the extent the Indemnifying Party is responsible for any Losses with respect to such claim). The Non-controlling Party shall provide the Controlling Party and its counsel with access to its records and personnel relating to any such claim during normal business hours and shall otherwise cooperate with the Controlling Party in the defense or settlement thereof. If the Controlling Party elects to direct the defense of any such claim, the Non-controlling Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted Liability unless Controlling Party consents in writing to such payment. If the Controlling Party assumes the defense of any such claim and proposes to settle such claim prior to a final judgment thereon or to forego any appeal with respect thereto, then the Controlling Party shall give the Non-controlling Party prompt written notice thereof, and the Non-controlling Party shall have the right to participate in and approve (such approval not to be unreasonably withheld, conditioned or delayed to the extent any settlement (i) solely involves payment in full by the Indemnifying Party and a full release of the Indemnified Party and (ii) does not involve any admission by any Indemnified Party of breach, violation or wrongdoing or involve any future covenants of the Indemnified Party, other than covenants of confidentiality relating to the terms of such settlement) the settlement or assume or reassume the defense of such claim or proceeding.

Notice; Defense of Claims. Subject to The Buyer Indemnified Parties and the terms of this Section 9.05, any Purchaser Indemnified Party or Seller Indemnified Party Parties (collectively, the “Indemnified Parties”, or each individuallyeach, an “Indemnified Party”) may shall make claims for indemnification hereunder by giving prompt written notice thereof to Seller or the SellerParent Parties, as applicable, prior to the applicable Indemnification Cut-Off Date in the case of claims made by a Purchaser the Buyer Indemnified Party, or to Purchaser, in the case of claims made by a Seller Indemnified PartyParties. If indemnification is sought for a claim by or in respect of any Third Partythird party, the Indemnified Party shall also give Seller the Parent Parties or PurchaserSeller, as the applicable Indemnifying Partyapplicable, written notice of such claim as to which such Indemnified Party may request indemnification hereunder or as to which the Deductible may be applied as soon as is practicable and in any event within [***] twenty (20) days of the time that such Indemnified Party learns of such claim; provided, however, that the failure to do so shall not relieve the party with the indemnification obligation hereunder (each an “Indemnifying Party”, and collectively, the “Indemnifying Parties”) from any Liability liability except to the extent that it is materially prejudiced by the failure or delay in giving such notice. Such notice shall state all of in reasonable detail the information then available regarding the amount and nature of such claim and the amount of Losses incurred or expected to be incurred in respect thereof to the extent determinable and shall specify the representation, warranty or covenant, or Excluded Liability or Assumed Liability, covenant in this Agreement under which the Liability liability or obligation is asserted. In the case of any Third Party claimthird party claim (which for the avoidance of doubt includes any claims or controversies related to Taxes), Seller or Purchaser, whichever is the Indemnifying Party, Party shall have the right to direct, through counsel of its own choosingchoosing reasonably acceptable to the Indemnified Party, the defense or settlement of any such claim at its own expense (subject to the limitations set forth in this Article IXVIII), unless the Indemnifying Party’s control of such claim would affect any privilege of the Indemnified Party in respect of such third party claim or a conflict of interest exists that would make it inappropriate in the reasonable judgment of the Indemnified Party for the Indemnifying Party to control such claim. If Seller or Purchaser, as applicable, the Indemnifying Party elects to assume the defense of any such claim, Seller or Purchaser, as applicable, it shall consult with the Indemnified Party for the purpose of allowing the Indemnified Party to participate in such defense. If Seller or Purchaser, as applicable, elects not to defend or if, after commencing or undertaking any such defense, Seller or Purchaser, as applicable, fails to diligently prosecute or withdraws from such defense, the Indemnified Party shall have the right to undertake the defense. The Indemnifying Party shall not be entitled to assume control of such defense if (i) the third-party claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation, investigation or any other matter involving a Governmental Entity; (ii) the third-party claim seeks an injunction or equitable relief against the Indemnified Party; or (iii) other than with respect to a claim under Section 9.01(d), the Indemnifying Party is Seller and the Third Party claim is asserted directly by or on behalf of a Person that is a supplier or customer of the Business. If Seller or Purchaser, as applicable, does not so assume control of such defense, the Indemnified Party shall control such defense (the party controlling the defense, whether Indemnifying Party or the Indemnified Party “Controlling Party”). Parent shall be the Controlling PartyParty for any claims arising out of or related to the Pfizer License Agreement. The party not controlling such defense (the “Non-controlling Party,” and the party controlling such defense, the “Controlling Party”) may participate therein at its own expense, which expense shall not be recoverable as part of any indemnification claim; provided that, if the Non-controlling Party is the Indemnified Party, if in the reasonable written opinion of counsel there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, then the Indemnifying Party shall be liable for the reasonable fees and expenses of one counsel to the Indemnified Party in connection with such defense (but only to the extent the Indemnifying Party is responsible for any Losses with respect to such claim). The Non-controlling Party shall provide provide, and shall cause the Company and its Subsidiary to provide, as applicable, the Controlling Party and its counsel with reasonable access to its records and personnel relating to any such claim during normal business hours and shall otherwise cooperate with the Controlling Party in the defense or settlement thereof. If the Controlling Party elects to direct the defense of any such claim, the Non-controlling Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted Liability liability unless Controlling Party consents in writing to such payment. If the Controlling Party assumes the defense of any such claim and proposes to settle such claim prior to a final judgment thereon or to forego any appeal with respect thereto, then the Controlling Party shall give the Non-Non- controlling Party prompt written notice thereof, and the Non-controlling Party shall have the right to participate in and approve (such approval not to be unreasonably withheld, conditioned or delayed to the extent any settlement (i) solely involves payment in full by the Indemnifying Party and a full release of the Indemnified Party and (ii) does not involve any admission by any Indemnified Party of breach, violation or wrongdoing or involve any future covenants of the Indemnified Party, other than covenants of confidentiality relating to the terms of such settlementdelayed) the settlement or assume or reassume the defense of such claim or proceeding.

Notice; Defense of Claims. Subject (a) On or prior to the terms Expiration Date, the party which is entitled to indemnification hereunder (for purposes of this Section 9.05, any Purchaser Indemnified Party or Seller Indemnified Party (collectively10.4, the “Indemnified Parties”, or each individually, an “Indemnified Party”) may make claims for indemnification hereunder by giving prompt written notice thereof to the Sellerparty required to indemnify (for purposes of this Section 10.4, in the case of claims made by a Purchaser Indemnified “Indemnifying Party, or to Purchaser, in the case of claims made by a Seller Indemnified Party”). If indemnification is sought for a claim asserted by or in respect of any Third Partya third party, the Indemnified Party shall also give Seller or Purchaser, as the applicable Indemnifying Party, written notice of such claim as thereof to which such Indemnified the Indemnifying Party may request indemnification hereunder as soon as is practicable and in any event within [***] promptly after it receives notice of the time that such Indemnified Party learns of such claim; providedclaim being asserted, however, that the but failure to do so so, or any delay in doing so, shall not relieve the party with the indemnification obligation hereunder (each an “Indemnifying Party”Party from any liability, unless, and collectively, the “Indemnifying Parties”) from any Liability except then only to the extent that it is materially that, the rights and remedies of the Indemnifying Party are prejudiced by as a result of the failure to give, or delay in giving giving, such notice. Such notice shall state all summarize the bases for the claim for indemnification and any claim being asserted by a third party. Within 30 days after receiving such notice, the Indemnifying Party shall give written notice to the Indemnified Party stating whether it disputes the claim for indemnification and whether it will defend against any third party claim at its own cost and expense. (b) The Indemnifying Party shall be entitled to direct the defense against a third party claim with counsel selected by it. The Indemnifying Party, in the defense of any third party claim or any litigation resulting therefrom, shall not consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the information then available regarding Indemnified Party (which consent shall not be unreasonably withheld or delayed), or enter into any settlement or compromise (except with the amount and nature written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a full release of all liability in respect of such claim and shall specify the representation, warranty or covenant, or Excluded Liability or Assumed Liability, in this Agreement under which the Liability is assertedlitigation. In the case of any Third The Indemnified Party claim, Seller or Purchaser, whichever is the Indemnifying Party, shall have the right at all times to direct, through counsel of its own choosing, participate fully in the defense or settlement of any such third party claim or litigation at its own expense directly or through counsel. (subject c) If the Indemnifying Party fails to the limitations set forth in this Article IX). If Seller give written notice of its intent to dispute or Purchaser, as applicable, elects to assume the defense defend a third party claim or litigation resulting therefrom after receipt of any such claim, Seller or Purchaser, as applicable, shall consult with notice from the Indemnified Party for the purpose of allowing the Indemnified Party to participate in such defense. If Seller or Purchaser, as applicable, elects not to defend or if, after commencing or undertaking any such defense, Seller or Purchaser, as applicable, fails to diligently prosecute or withdraws from such defenseParty, the Indemnified Party shall have the right to undertake the defense. defense of such claim in such manner as it deems appropriate, with counsel selected by it, and to compromise or settle such claim or litigation on such terms as it may deem appropriate, exercising reasonable business judgment. (d) The Indemnifying Indemnified Party shall not be entitled to assume control of make available such defense if (i) the third-party claim relates to or arises information and assistance in connection with any criminal proceeding, action, indictment, allegation, investigation or any other matter involving a Governmental Entity; (ii) the third-party claim seeks an injunction or equitable relief against the Indemnified Party; or (iii) other than with respect to a claim under Section 9.01(d), the Indemnifying Party is Seller and the Third Party claim is asserted directly by or on behalf of a Person that is a supplier or customer of the Business. If Seller or Purchaser, as applicable, does not so assume control of such defense, the Indemnified Party shall be the Controlling Party. The party not controlling such defense (the “Non-controlling Party,” and the party controlling such defense, the “Controlling Party”) may participate therein at its own expense, which expense shall not be recoverable as part of any indemnification claim; provided that, if the Non-controlling Party is the Indemnified Party, if in the reasonable written opinion of counsel there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, then the Indemnifying Party shall be liable for the reasonable fees and expenses of one counsel to the Indemnified Party in connection with such defense (but only to the extent the Indemnifying Party is responsible for any Losses with respect to such claim). The Non-controlling Party shall provide the Controlling Party and its counsel with access to its records and personnel relating to any such claim during normal business hours and shall otherwise cooperate with the Controlling Party in the defense or settlement thereof. If the Controlling Party elects to direct the defense of any such claim, the Non-controlling Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted Liability unless Controlling Party consents in writing to such payment. If the Controlling Party assumes the defense of any such claim and proposes to settle such claim prior to a final judgment thereon or to forego any appeal with respect thereto, then the Controlling Party shall give the Non-controlling Party prompt written notice thereof, and the Non-controlling Party shall have the right to participate in and approve (such approval not to be unreasonably withheld, conditioned or delayed to the extent any settlement (i) solely involves payment in full by the Indemnifying Party as the Indemnifying Party may reasonably request and a full release shall cooperate with the Indemnifying Party in such defense at the expense of the Indemnified Party and (ii) does not involve any admission by any Indemnified Party of breach, violation or wrongdoing or involve any future covenants of the Indemnified Indemnifying Party, other than covenants of confidentiality relating to the terms of such settlement) the settlement or assume or reassume the defense of such claim or proceeding.

Notice; Defense of Claims. Subject to the terms of this Section 9.05, any Purchaser (a) Any Buyer Indemnified Party or Seller Stockholder Indemnified Party (collectively, the “Indemnified Parties”, or each individually, an “Indemnified Party”) may make claims for indemnification hereunder by giving prompt written notice thereof to the SellerStockholders’ Representative, in the case of claims made by a Purchaser Indemnified Partyagainst the Company, or to PurchaserBuyer, in the case of claims made by a Seller Indemnified Partyagainst Buyer or the Surviving Corporation, prior to the Indemnification Cut-Off Date. If indemnification is sought for a claim claim, assertion, event or proceeding by or in respect of any third party (a “Third PartyParty Claim”), the Indemnified Party shall also give Seller the Stockholders’ Representative or PurchaserBuyer, as the applicable Indemnifying Partyapplicable, written notice of such claim Third Party Claim as to which such Indemnified Party may request indemnification hereunder hereunder, as soon as is reasonably practicable and in any event within [***] of after the time that such Indemnified Party learns of such Third Party Claim, and in any event within thirty (30) days thereafter. Any notice given pursuant to this Section 9.5 shall state all material information then available regarding the amount and nature of such claim; provided, howeverassertion, that event or proceeding and shall specify the representation, warranty or covenant in this Agreement under which the liability or obligation is asserted. The failure of the Indemnified Party to do so give notice as provided in this Section 9.5 shall not relieve the any party with the an indemnification obligation hereunder (each an “Indemnifying Party”, ” and collectively, the “Indemnifying Parties”) from any Liability liability except to the extent that it is materially actually prejudiced by the failure or delay in giving such notice and then only to the extent of such prejudice. (b) In the event that an Indemnifying Party shall object in good faith to the indemnification of an Indemnified Party in respect of any claim or claims specified in a notice given pursuant to this Section 9.5, the Indemnifying Party shall, within thirty (30) days after receipt by the Indemnifying Party of such notice. Such , deliver to the Indemnified Party a notice shall state all to such effect, setting forth in reasonable detail the basis for such objection, and the Indemnifying Party and the Indemnified Party shall, within the thirty (30) day period beginning on the date of receipt by the Indemnified Party of such objection, attempt in good faith to agree upon the rights of the information then available regarding the amount and nature respective parties with respect to each of such claim and shall specify the representation, warranty or covenant, or Excluded Liability or Assumed Liability, in this Agreement under claims to which the Liability is assertedIndemnifying Party shall have so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement and, if applicable, an instruction to the Escrow Agent. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then each party shall be entitled to pursue its available remedies for resolving the claim for indemnification. (c) In the case of any event that a Third Party Claim gives rise to an indemnification claim, Seller or Purchaser, whichever is the Indemnifying Party may elect to assume and control the defense of such Third Party Claim and any litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall have conduct the right to directdefense of such claim or any litigation resulting therefrom, through shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld or delayed), and the Indemnified Party may participate in such defense at the Indemnified Party’s expense, which shall include counsel of its own choosing, the defense or settlement of any such claim at its own expense (subject to the limitations set forth in this Article IX). If Seller or Purchaser, as applicable, elects to assume the defense of any such claim, Seller or Purchaser, as applicable, shall consult with the Indemnified Party for the purpose of allowing the Indemnified Party to participate in such defense. If Seller or Purchaser, as applicable, elects not to defend or if, after commencing or undertaking any such defense, Seller or Purchaser, as applicable, fails to diligently prosecute or withdraws from such defense, choice; provided further that the Indemnified Party shall have the right to undertake employ, at the defense. The Indemnifying Party’s expense, one counsel of its choice in each applicable jurisdiction (if more than one jurisdiction is involved) to represent the Indemnified Party shall not be entitled to assume control of such defense if (i) the third-party claim relates to or arises if, in connection with any criminal proceeding, action, indictment, allegation, investigation or any other matter involving a Governmental Entity; (ii) the third-party claim seeks an injunction or equitable relief against the Indemnified Party; or (iii) other than with respect to a claim under Section 9.01(d)’s reasonable judgment, the Indemnifying Party is Seller and the Third Party claim is asserted directly by or on behalf of a Person that is a supplier or customer of the Business. If Seller or Purchaser, as applicable, does not so assume control of such defense, the Indemnified Party shall be the Controlling Party. The party not controlling such defense (the “Non-controlling Party,” and the party controlling such defense, the “Controlling Party”) may participate therein at its own expense, which expense shall not be recoverable as part of any indemnification claim; provided that, if the Non-controlling Party is the Indemnified Party, if in the reasonable written opinion of counsel there exists a an actual or potential conflict of interest between the Indemnified Party and the Indemnifying Party; and provided further that, if the Indemnifying Party (i) elects not to defend, compromise or settle a Third Party Claim or (ii) having elected to defend a Third Party Claim, fails to retain counsel to prosecute the action within twenty (20) days of such election, then in such case the Indemnified Party shall have the right to defend such Third Party Claim on behalf of and for the account and risk of the Indemnifying Party. Neither the Indemnifying Party nor the Indemnified Party shall settle or compromise any Third Party Claim without the prior written consent of the Indemnified Party or the Indemnifying Party, as applicable, which consent shall not be unreasonably withheld. No Indemnified Party shall be deemed to have unreasonably withheld its consent to any such proposed settlement or compromise that contains any term that does not consist entirely of a monetary payment and that does not include an unconditional release from all liability without future obligation or liability on the part of the Indemnified Party and its Affiliates. If an Indemnified Party refuses to consent to a bona fide offer of settlement which the Indemnifying Party wishes to accept and which provides solely for monetary payment and includes an unconditional release from all liability without future obligation or prohibition on the part of the Indemnified Party and does not contain an admission of guilt or liability on the part of the Indemnified Party and, in the case of Buyer being the Indemnified Party, such settlement has no adverse effect on the reputation of Buyer, the Indemnified Party may continue to pursue such matter, free of any participation by the Indemnifying Party, at the expense of the Indemnified Party. However, in such event, the obligation of the Indemnifying Party shall be limited to the amount of the offer of settlement which the Indemnified Party refused to accept plus the reasonable costs and expenses of the Indemnified Party incurred prior to the date the Indemnifying Party notified the Indemnified Party of the offer of settlement. The Indemnifying Party and the Indemnified Party that cannot be waived, then the Indemnifying Party shall be liable for the cooperate with each other in all reasonable fees and expenses of one counsel to the Indemnified Party respects in connection with such defense (but only to the extent the Indemnifying Party is responsible for any Losses with respect to such claim). The Non-controlling Party shall provide the Controlling Party and its counsel with access to its records and personnel relating to any such claim during normal business hours and shall otherwise cooperate with the Controlling Party in the defense or settlement thereof. If the Controlling Party elects to direct the defense of any such claim, the Non-controlling Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted Liability unless Controlling Party consents in writing including making available records relating to such payment. If claim and furnishing, at the Controlling expense of the Indemnifying Party, such employees of the Indemnified Party assumes as may be reasonably necessary for the preparation of the defense of any such claim and proposes to settle such claim prior to a final judgment thereon or to forego for testimony as witnesses in any appeal with respect thereto, then the Controlling Party shall give the Non-controlling Party prompt written notice thereof, and the Non-controlling Party shall have the right to participate in and approve (such approval not to be unreasonably withheld, conditioned or delayed to the extent any settlement (i) solely involves payment in full by the Indemnifying Party and a full release of the Indemnified Party and (ii) does not involve any admission by any Indemnified Party of breach, violation or wrongdoing or involve any future covenants of the Indemnified Party, other than covenants of confidentiality proceeding relating to the terms of such settlement) the settlement or assume or reassume the defense of such claim or proceedingclaim.