Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice. (b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld). (c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (TNS Inc)
Notice of Claim; Defense. (a) If Purchaser shall give Sellers’ Representative prompt notice of any third-party claim (iand in the case of any Tax audit within a ten (10) day period from the date of receipt of any third party avis de vérification or Governmental Authority institutes, threatens or asserts any Action proposition de rectification) that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) ARTICLE VIII, together with the estimated amount of such claim, and Sellers’ Representative shall have a claim the right to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then assume the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature defense (at Sellers’ expense) of any such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain through counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel Sellers’ Representative’s own choosing by so long as (i) the Indemnifying Party notifies the Indemnified Party, notifying Purchaser within thirty (30) days after of the Indemnified Party first receipt by Sellers’ Representative of such notice from Purchaser; provided, however, that any such counsel shall be reasonably satisfactory to Purchaser. Failure to give such notice shall not affect the indemnification obligations hereunder (i) in the absence of actual and material prejudice for the Company and its Subsidiaries and (ii) provided that it does not affect the amount of indemnification due by the Sellers. Sellers shall be liable for the fees and expenses of counsel employed by the Company for any period during which Sellers’ Representative has given not assumed the defense of any such third-party claim (other than during any period in which Purchaser will have failed to give notice of the Thirdthird-Party Claim party claim as provided above) if such third party claim is covered by the Sellers’ indemnification obligations under this Article VIII without regard to the Indemnifying Partylimitations set forth in Section 8.2(b). If Sellers’ Representative assumes such defense, that Purchaser shall have the Indemnifying Party is assuming right to participate in the defense against (thereof and to employ counsel, at its own expense, separate from the counsel employed by Sellers’ Representative. If Sellers’ Representative chooses to defend or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name orprosecute a third-party claim, if necessary, Purchaser shall cooperate in the name defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by Sellers’ Representative, the retention, and the provision to Sellers’ Representative, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Party in accordance with Company available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If Sellers’ Representative chooses to defend or prosecute any third-party claim, Purchaser shall agree to any settlement, compromise or discharge of such third-party claim that Sellers’ Representative may recommend and that, by its terms, discharges Purchaser and the terms and limitations Purchaser Affiliates from the full amount of this Article Xliability vis à vis such third-party; provided, that (A) however, that, without the Indemnified Parties consent of Purchaser, Sellers’ Representative shall not consent to, and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party Purchaser shall not be entitled required to assume agree to, the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission entry of any violation judgment or enter into any settlement that (i) provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of applicable law and Purchaser; (3ii) such settlement includes does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to each Purchaser Indemnified Person that is the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent subject of such Indemnified Party, which consent shall third-party claim; or (iii) provides for monetary relief that is not be unreasonably withheldindemnified under this ARTICLE VIII by the Sellers. Notwithstanding the foregoing, if Purchaser determines in good faith that there is a reasonable probability that a claim may adversely affect the Indemnifying Party elects not to retain counsel and assume control Company, the Purchaser or their Affiliates other than as a result of such defense or is otherwise not monetary damages for which it would be entitled to do full indemnification under this Agreement taking into account the limitations set forth in Section 8.2 and Section 8.9, the Purchaser may, by notice to the Sellers’ Representative, assume the exclusive right to defend, compromise, or settle such claim, but the Sellers will not be bound by any determination of a claim so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have defended or any liability in connection with any comprise or settlement of any Action that is entered into effected without its prior written consent (which shall may not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Openwave Systems Inc)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Amended Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly (and in the case of clause (i) in any event within ten (10) Business Days after receipt by the Indemnified Party of notice of the Third-Party Claim) send to the Indemnifying Party a written notice specifying (to the nature extent known) in reasonable details the nature, facts and circumstances of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts shall be relieved not affect the rights of its indemnification obligations under this Article X only if (and then only the indemnified parties except to the extent that) it is that such failure actually prejudiced by prejudices the failure of the Indemnified Parties to provide a timely and adequate Claim NoticeIndemnifying Party.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) counsel. Should the Indemnifying Party notifies so elect to control the defense of a Third-Party Claim, the Indemnifying Party shall allow the Indemnified PartyParties a reasonable opportunity to participate, within thirty (30) days after at their own expense and through legal counsel of their choice, in the defense of such Third-Party Claim. The Indemnifying Party shall keep the Indemnified Party has given notice advised of the status of such Third-Party Claim and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto. The Indemnified Party shall deliver to the Indemnifying Party, that promptly after the Indemnifying Party is assuming the defense against Indemnified Party’s receipt thereof, copies of all notices and documents (or settlement ofincluding court papers) such Third Party Claim and will indemnify received by the Indemnified Party against such Third relating to the Third-Party Claim Claim. Notwithstanding anything to the contrary in its name orthis Amended Agreement, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and or continue control of such settlement and the defense of any Third-Party Claim if (wA) the claim for indemnification such Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation (B) such Third-Party Claim seeks an injunction or investigationequitable relief against any Indemnified Party (other than in cases where the primary remedy being sought by such third party or Governmental Authority is monetary damages), (xC) such Third Party Claim has or would reasonably be expected to result in Losses (excluding, for the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to avoidance of doubt, for the Indemnified Party purpose of this clause (C), any Tax excess) in excess of the maximum amount for which the Indemnifying Party has not or cannot assert on behalf of is potentially liable with respect to such Third Party Claim, (D) the Indemnified Party’s counsel advises that a conflict of interest exists or would reasonably be expected to arise in the event the Indemnifying Party elects to control or defend any Third-Party Claim, (yE) the Indemnifying Party has failed or is failing to vigorously prosecute defend in good faith such Third Party Claim, (F) such Third-Party Claim arises out of any Release of any Hazardous Material or defend noncompliance with any Environmental Law at any Real Property or (G) such claimThird Party Claim arises out of or relates to any Intellectual Property constituting a Transferred Asset. The If, in the reasonable opinion of the Indemnifying Party’s outside counsel, the equitable relief or other relief portion of the Third-Party shall not settle any such Action Claim referenced in clause (B) above can be separated from the claim for money damages without prejudicial effect (other than a de minimis prejudicial effect) on the relevant Indemnified Parties’ non-monetary claims, then, with the prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), unless the Indemnifying Party shall be entitled to assume the defense of the portion of such claim relating to money damages. The Indemnifying Party shall have the right to settle, compromise or discharge a Third-Party Claim either (1I) with the sole prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) or (II) without any Indemnified Party’s consent if such settlement, compromise or discharge (x) provides for no relief provided is other than the payment of monetary damages that and such monetary damages are entirely paid or reimbursed in full by the Indemnifying Party, (2y) there is no finding or admission includes as an unconditional term thereof the giving by the Person(s) asserting such Third-Party Claim to all Indemnified Parties of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to Third-Party Claim and (z) does not contain an admission of liability on the foregoing the part of any Indemnified Party. The Indemnifying Party shall not settle consent to the entry of any third party claim with respect to Taxes that could adversely affect judgment which would impose any injunctive or equitable relief on the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within thirty (30) Business Days of receipt of written notice of such Third Party Claim or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Action and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense of the Indemnified Parties in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third-Party Claim, the parties hereto shall cooperate in the defense thereof in accordance with Section 11.02(c). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Third-Party Claim that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable and documented out-of-pocket expenses of the Indemnified Parties); provided that the Indemnifying Party shall take reasonable precautions so as not to jeopardize any privilege reasonably available to an Indemnified Party in respect of any of its records.
(d) In the event of a Direct Claim, within thirty (30) days of delivery of a Claim Notice to the Indemnifying Party, if the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations, such dispute shall be resolved by litigation in a court of competent jurisdiction pursuant to Section 12.10.
Appears in 2 contracts
Samples: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Notice of Claim; Defense. (a) If (i) The Sellers Representatives shall give Purchaser prompt notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action claim that may give rise to Losses for which any indemnification obligation under this Section 9.3, together with the estimated amount of such claim, and Purchaser shall have the right to assume the defense (at the Purchaser's expense) of any such claim through counsel of Purchaser's own choosing by so notifying the Sellers Representatives within sixty (60) days of the first receipt by Purchaser of such notice from the Sellers Representatives. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Seller Indemnified Person and Purchaser exists in respect of such third-party (an “Indemnifying Party”) claim, Purchaser shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict. Purchaser shall be liable for indemnification under this Article X the reasonable fees and expenses of counsel employed by Purchaser for any period during which Purchaser has not assumed the defense of any such third-party claim (a “Thirdother than during any period in which Purchaser will have failed to give notice of the third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) party claim as provided above). If Purchaser assumes such defense, Sellers shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Purchaser. If Purchaser chooses to defend or prosecute a claim to be indemnified by an Indemnifying Party that does not involve a Thirdthird-Party Claimparty claim, then Sellers shall cooperate in the Indemnified Party defense or prosecution thereof, which cooperation shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only include, to the extent that) it is actually prejudiced reasonably requested by Purchaser, the failure retention, and the provision to Purchaser, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Parties Company available on a mutually convenient basis to provide a timely additional information and adequate Claim Notice.
(b) In explanation of any materials provided hereunder. If Purchaser chooses to defend or prosecute any third-party claim, Sellers shall agree to any settlement, compromise or discharge of such third-party claim that Purchaser may recommend and that, by its terms, discharges Sellers and their Affiliates from the event full amount of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties liability in connection with such Action third-party claim; provided, however, that, without the consent of the Sellers Representative, Purchaser shall not consent to, and the Sellers Representative shall pay not be required to agree to, the fees, charges and disbursements entry of such counsel so long as any judgment or enter into any settlement that (i) the Indemnifying Party notifies the Indemnified Party, within thirty provides for injunctive or other non-monetary relief affecting Sellers or any Affiliate of Sellers; (30ii) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall does not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to each Seller Indemnified Person that is the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent subject of such Indemnified Party, which consent shall third-party claim; or (iii) provides for monetary relief that is not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with indemnified under this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected 9.3 by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)Purchaser.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 2 contracts
Samples: Share Purchase and Contribution Agreement, Share Purchase and Contribution Agreement (Paradigm Ltd.)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutesFor purposes of this Article VIII, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable making a claim for indemnification indemnity under this Article X (a “Third-Party Claim”Section 8.1(a) or (ii8.1(b) any Person entitled is hereinafter referred to indemnification under this Agreement (as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) shall have a claim to be indemnified by for which an Indemnifying Party that does not involve a Third-would be liable to an Indemnified Party Claimis asserted against or sought to be collected from such Indemnified Party, then the said Indemnified Party shall promptly send to notify the Indemnifying Party a written notice specifying the nature in writing of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim and the amount of all related Losses for indemnification (a “Claim Notice”). The Indemnifying ; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party shall be relieved of its indemnification obligations under this Article X only if (and then only except to the extent thatthe rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) it is actually prejudiced has expired without such notice being given. After receipt by the failure Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party ClaimParty, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Proceeding, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Proceeding and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldProceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or is otherwise not entitled fails to give prompt notice of its intention to do so in accordance so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with this Section 10.02respect to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such ActionProceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no more than one such counsel per jurisdiction selected finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Parties shall be reimbursed by Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnifying Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld).
(cb) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(c) Pursuant to this Section 8, notwithstanding the foregoing, in the case of any claim in respect of Taxes, both the Indemnifying Party and the Indemnified Party shall have the right to participate in and control any audit the resolution of which may give rise to a claim for Taxes in respect of which indemnification may be sought pursuant to Section 8.1, and the resolution of any such audit shall be subject to the approval of Buyer and Member Agent, which approval shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Merger Agreement (Insight Enterprises Inc), Merger Agreement (Insight Enterprises Inc)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, action or proceeding (each of the foregoing, a “Proceeding”) against any Person entitled to indemnification under this Agreement (an “Indemnified Party”) that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X VII (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim), then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying (to the extent such information is reasonable available) the nature of such claim and and, if available, the estimated amount of all related Losses Liabilities, which estimate shall be subject to change (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only VII to the extent that) that it is actually materially prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice. If a Claim Notice has been given prior to the expiration of the applicable representations and warranties, then the relevant representation and warranties shall survive as to such claim until such claim has been finally resolved.
(b) In The Indemnifying Party will have 20 days (or such lesser number of days as set forth in the Claim Notice as may be required by court proceeding in the event of a Third-Party Claim, litigation matter) after receipt of the Indemnifying Party may elect Claim Notice to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after notify the Indemnified Party has given notice that it desires to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party, unless the Indemnified Party has notified the Indemnifying Party that it has determined in good faith that (i) there is a reasonable probability that such claim may materially and adversely affect it or its Affiliates other than as a result of money damages, (ii) a conflict of interest exists in respect of such claim, or (iii) there are specific defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party and that could be adverse to the Indemnifying Party, that . If the Indemnifying Party is assuming assumes the defense against (or settlement of) such of the Third Party Claim and will Claim, it shall have conclusively established its obligation to indemnify the Indemnified Party against with respect to such Third Party Claim in its name orClaim. The Indemnified Parties may participate, if necessaryat their own expense and through legal counsel of their choice, in the name of the Indemnified Party in accordance with the terms and limitations of this Article Xany such Proceeding; provided, that (A) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle (i) consent to, or enter into, any compromise or settlement which commits the Indemnified Party to take, or to forbear to take, any action or does not provide for a full and complete written release by such Action third party of the Indemnified Party, (ii) consent to, or enter into, any compromise or settlement, consent to the entry of any judgment, or admit any liability or wrongdoing with respect to any Third-Party Claim unless it involves only the payment of money damages all of which will be borne by the Indemnifying Party in accordance with its indemnification obligations hereunder and does not impose an injunction or other equitable relief upon the Indemnified Party or otherwise involve any admission of liability or wrongdoing by the Indemnified Party, in each case, without the relevant Indemnified Parties’ Party’s prior written consent (consent, which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid conditioned or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withhelddelayed. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Proceeding and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Proceeding and assume control of the defense in connection with such ActionProceeding, and and, to the extent the Indemnified Party is entitled to indemnification hereunder in connection with such Proceeding, the fees, charges and disbursements of no not more than one firm as such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall (i) reasonably cooperate with the Indemnifying Party in connection with the defense of any Third-Party Claim and (ii) grant the Indemnifying Party and its counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel (including as witnesses or deponents at trial and during the discovery process) and properties of the Indemnified Party to the extent reasonably related to the Claim Notice Notice, in the case of each of clauses (i) and (ii) of this sentence, at no cost to the Indemnifying Party (other than for reasonable out-of-out of pocket expenses of the Indemnified Parties).
(d) From and after the Closing, except in the case of fraud, the indemnification obligations set forth in this Article VII are the exclusive remedy of the Indemnified Parties (a) for any inaccuracy in any of the representations or any breach of any of the warranties or covenants contained herein or (b) otherwise with respect to this Agreement and the transactions contemplated by this Agreement and matters arising out of, relating to or resulting from the subject matter of this Agreement, whether based on statute, contract, tort, property or otherwise, and whether or not arising from the relevant Party’s sole, joint or concurrent negligence, strict liability or other fault.
Appears in 2 contracts
Samples: Purchase Agreement (Residential Capital, LLC), Purchase Agreement (Gmac LLC)
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority Body institutes, threatens or asserts any Action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may be liable for indemnification under this Article X IX (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the an Indemnified Parties Party to provide give a timely and adequate Claim NoticeNotice shall not relieve the Indemnifying Party of its obligations under this Article IX except to the extent that the Indemnifying Party is actually prejudiced by such failure.
(b) In The Indemnifying Party may, by notice delivered within twenty (20) Business Days after the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal or insurance enforcement proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 9.3(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 9.3(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimAction. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Partydamages, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to Liability arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the such Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties), subject to any bona fide claims of attorney-client privilege.
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within sixty (60) Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article IX; provided that the failure of an Indemnifying Party to give such notice shall not affect such Indemnifying Party’s obligations under this Article IX except to the extent that the Indemnified Party is prejudiced by such failure to give such notice.
Appears in 2 contracts
Samples: Reinsurance Agreement (Variable Annuity 1 Series Account), Reinsurance Agreement (Variable Annuity 1 Series Account)
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority institutes, threatens Body institutes or asserts any Action that may give rise to Losses for which a party Party (an “"Indemnifying Party”") may be liable for indemnification under this Article X (a “"Third-Party Claim”") or (ii) any Person that may be entitled to indemnification under this Agreement (an “"Indemnified Party”") shall have desires to make a claim not involving a Third-Party Claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses to the extent they are ascertainable (a “"Claim Notice”"). The Indemnifying Party shall not be relieved from any of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the as a result of a failure of the Indemnified Parties Party to provide a timely and adequate Claim Notice, except to the extent that it is materially prejudiced by such failure.
(b) In The Indemnifying Party may, by notice delivered within 20 Business Days of the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnified Party may take any actions reasonably necessary to defend any Third-Party Claim prior to the time that it receives notice from the Indemnifying Party as contemplated by the preceding sentence. The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 10.3(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 10.3(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action. To the extent such action can be taken in a way that does not unreasonably jeopardize the attorney-client privilege: (i) the Indemnified Party's right to participate in the defense of any Action shall include the right to attend all significant internal meetings, all meetings with representatives of plaintiffs, hearings and the like; and (Bii) counsel for an Indemnified Party also shall be given a reasonable opportunity to comment upon all memoranda of law, pleadings and briefs and other documents relating to the Third-Party Claim, and the Indemnifying Party and its counsel shall not be entitled give reasonable consideration to assume the conduct and control comments of such settlement and defense if (w) the claim counsel for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimParty. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ ' prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Partydamages, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to Liability arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects does not to promptly retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall may retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall such consent not to be unreasonably withheld, delayed or conditioned).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within 20 Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article X.
Appears in 2 contracts
Samples: Reinsurance Agreement (Hartford Life & Annuity Ins Co Separate Acount Vlii), Reinsurance Agreement (Hartford Life Insurance Co Separate Account Vl Ii)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (Ai) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (Bii) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (wA) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (xB) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or Party, (yC) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim, or (D) a conflict exists with respect to the counsel retained by the Indemnifying Party. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheldwithheld or delayed), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheldwithheld or delayed). The foregoing provisions of this Section 10.02(b) shall not apply to any Third-Party Claim that alleges conduct for which both Seller and Purchaser would be an “Indemnifying Party” under Section 10.01(a)(iii) or (iv) (with respect to Seller) and Section 10.01(b)(iii) or (iv) (with respect to Purchaser). In any such case, each of Seller and Purchaser shall, at its cost and expense, assume and control the defense of the portion of such Third-Party Claim related to conduct for which such party would be so required to provide indemnity.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(d) The provisions of this Section 10.02 are subject to the terms of Section 5.15 and Section 7.04(f).
Appears in 2 contracts
Samples: Acquisition Agreement (Syniverse Technologies Inc), Acquisition Agreement (Verisign Inc/Ca)
Notice of Claim; Defense. A Parent Indemnified Person or a Equity Holder Indemnified Person that desires to seek indemnification under any part of this Article X (aeach, an "Indemnified Person") If shall give to each party responsible or alleged to be responsible for indemnification hereunder (ian "Indemnitor") prompt notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action claim that may give rise to Losses for which any indemnification obligation under this Article X, together with the estimated amount of such claim (if then estimable), and the Indemnitor shall have the right to assume the defense (at its expense) of any such claim through counsel of such Indemnitor's own choosing by so notifying the Indemnified Persons within fifteen (15) Business Days of the first receipt by such Indemnitor of such notice from the Indemnified Persons; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Persons. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice and in such case, only to the extent of such prejudice. If, under applicable standards of professional conduct, a conflict between any Indemnified Persons and any Indemnitor exists in respect of such third-party claim, the Indemnitor shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict (an “Indemnifying Party”) may but not more than one firm of counsel). The Indemnitor shall be liable for indemnification under this Article X the fees and expenses of counsel employed by the Indemnified Persons for any period during which the Indemnitor has not assumed the defense of any such third-party claim. If the Indemnitor assumes such defense, the Indemnified Persons shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor chooses to defend or prosecute any third-party claim, the Indemnified Persons shall agree to any settlement, compromise or discharge of such third-party claim that the Indemnitor may recommend and that, by its terms, discharges the Indemnified Persons from any Liability in connection with such third-party claim; provided, however, that, without the consent of the Indemnified Persons, the Indemnitor shall not consent to, and the Indemnified Persons shall not be required to agree to, the entry of any judgment or enter into any settlement that (a “Thirdi) provides for injunctive or other non-Party Claim”) monetary relief affecting the Indemnified Persons or any affiliate of the Indemnified Persons or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then include as an unconditional term thereof the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event giving of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to claim by each claimant or plaintiff for the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent benefit of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties)Person.
Appears in 2 contracts
Samples: Stock Purchase Agreement (United National Group LTD), Stock Purchase Agreement (Penn America Group Inc)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement Article X (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) that it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party, (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in either case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates, (iii) the Third-Party Claim would reasonably be expected to materially and adversely affect the reputation of the Indemnified Party or (iv) if such Third-Party Claim is subject to the provisions of Section 10.01(c)(ii), the amount of Losses reasonably estimated to be incurred pursuant to such Third-Party Claim (when combined with all other outstanding claims for indemnification subject to the provisions of Section 10.01(c)(ii) and any amount previously paid by the Indemnifying Party that applies towards the applicable cap under Section 10.01(c)(ii)(B)(3)) that are in excess of the applicable cap set forth in Section 10.01(c)(ii) would exceed the amount of Losses reasonably estimated to be incurred pursuant to such Third-Party Claim below such applicable cap.
(c) Subject to Section 10.02(b), in the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 10.02(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimAction. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages, which damages that are entirely not (when combined with any amount previously paid or reimbursed by the Indemnifying PartyParty that applies towards the applicable cap under Section 10.01(c)(ii)(B)(3)) materially in excess of the applicable cap set forth in Section 10.01(c)(ii), (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect of the Indemnified Party without prior written consent of from all Liability arising from such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(cd) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 2 contracts
Samples: Acquisition Agreement (Symantec Corp), Acquisition Agreement (Verisign Inc/Ca)
Notice of Claim; Defense. (a) If A Party who may be entitled to be indemnified and held harmless under Section 6.1 or Section 6.2 (i) any third party the “Indemnified Party”), shall promptly notify Provider or Governmental Authority institutesHLI, threatens or asserts any Action that may give rise to Losses for which a party as applicable (an the “Indemnifying Party”) may be liable for indemnification in writing of any pending or threatened claim or demand by a third party that the Indemnified Party has determined has given or could reasonably give rise to such a right under this Article X Agreement (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “Third-Party Claim”) ), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or (ii) any Person entitled demand; provided, that the failure to indemnification under this Agreement (an “Indemnified Party”) provide such notice shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to release the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved from any of its indemnification obligations under this Article X only if (and then only VI except to the extent that) it the Indemnifying Party is actually prejudiced by the failure such failure. Following delivery of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event notice of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim shall deliver to the Indemnifying Party, that promptly (and in any event within ten (10) Business Days) after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such Third-Party Claim.
(b) Following receipt of a notice of a Third-Party Claim from an Indemnified Party pursuant to Section 6.3(a), the Indemnifying Party is assuming may assume the defense against (or settlement of) and control of such Third Third-Party Claim and will indemnify by delivery of written notice to the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name within sixty (60) days after receipt of the Indemnified Party in accordance with the terms and limitations of this Article XParty’s claims notice pursuant to Section 6.3(a); provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and or maintain control of such settlement the defense of any Third-Party Claim and defense if shall pay the reasonable fees, costs and expenses of counsel retained by the Indemnified Party to the extent (wi) the claim for indemnification Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigationinvestigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, (x) in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates. The assumption of the defense by the Indemnifying Party of any Third-Party Claim shall not require the Indemnifying Party to agree to be liable for any Losses in respect of such Third-Party Claim and shall be without prejudice to any rights or defenses of the Indemnifying Party in respect of whether the Indemnified Party is advised entitled to indemnification under this Article VI for any particular Loss or Losses.
(c) The Indemnified Party may take any actions reasonably necessary to defend such Third-Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by Section 6.3(b). If the Indemnifying Party assumes the defense of any Third-Party Claim in accordance with Section 6.3(b), the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third-Party Claim with its own counsel chosen and at its own expense; provided, however, that notwithstanding the foregoing, the Indemnifying Party shall bear the reasonable fees, costs and expenses of one
(1) such separate counsel if (i) the Indemnifying Party and the Indemnified Party are both named parties to the Action and the Indemnified Party shall have reasonably determined in good faith that the representation of both parties by it the same counsel would be inappropriate due to actual differing interests between them or that there are one may be defenses or more defenses counterclaims available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of that are inconsistent with those available to the Indemnified Party or (yii) the Indemnifying Party failed shall have authorized the Indemnified Party to employ separate counsel at the Indemnifying Party’s expense. If the Indemnifying Party assumes the defense of any Third- Party Claim, the Indemnifying Party shall not, for so long as it diligently conducts such defense, be liable to the Indemnified Party for legal or is failing to vigorously prosecute or defend such claimother expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than provided in this Section 6.3(c). The Indemnifying Party shall not settle any such Action without be liable for the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)reasonable fees, unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed costs and expenses of counsel employed by the Indemnified Party for any period during which Indemnifying PartyParty has not assumed or is not diligently conducting the defense of a Third-Party Claim for which the Indemnified Party is entitled to indemnification hereunder. Provider or HLI, (2) there is no finding or admission as the case may be, shall, and shall cause each of any violation of applicable law its Affiliates and (3) such settlement includes an unconditional release from all liability Representatives to, reasonably cooperate with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle in the defense of any third party claim with respect to Taxes that could adversely affect Third-Party Claim. Without limiting the Indemnified Party without prior written consent generality of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From from and after the delivery of a Claim Noticenotice of a claim for indemnification with respect to a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice such Third- Party Claim, at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties). The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, without the consent of any Indemnified Party; provided, that (A) such settlement provides only for the payment of monetary damages (and does not impose any injunctive relief or otherwise impose any conditions or restrictions on the applicable Indemnified Party or any of its Affiliates or Representatives) and does not involve any finding or admission of any violation of Law or admission of any wrongdoing or any violation of the rights of any Person and does not include a statement or admission of fault, culpability or failure to act by or on the part of any Indemnified Party or any of its Affiliates or Representatives, (B) the Indemnifying Party pays or causes to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement or judgment, and (C) the Indemnifying Party obtains, as a condition of any settlement, entry of judgment or other resolution, a complete and unconditional release of each Indemnified Party from any and all Liabilities in respect of such Third-Party Claim. If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim to which it is entitled to indemnification hereunder, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, then the Indemnified Party shall have the right but not the obligation to assume its own defense, but without in any way waiving or otherwise affecting the Indemnified Party’s rights to indemnification pursuant to this Agreement, and the Indemnifying Party shall bear all fees, costs and expenses of one such counsel engaged by the Indemnified Party for Third-Party Claims for which such Indemnified Party was entitled to indemnification hereunder.
(d) No Indemnifying Party shall have any liability under this Article VI for any Losses arising out of or in connection with any Third-Party Claim that is settled or compromised by an Indemnified Party without the prior consent of such Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
(e) If an Indemnified Party wishes to make a claim under this Article VI that does not involve a Third-Party Claim, the Indemnified Party shall give written notice to the Indemnifying Party setting forth (i) a reasonably detailed description of the claim, (ii) a good faith estimate of the amount of the claim (to the extent ascertainable) and (iii) the specific provision of this Agreement that the Indemnified Party alleges to be breached, and such notice shall be accompanied by copies of all available documentation that may be necessary or appropriate for the purposes of enabling the Indemnifying Party to be informed and to take any and all appropriate decisions and actions in respect of the matter and Loss that is the subject of the claim; provided, that the failure to provide such notice on a timely basis shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is actually prejudiced by such failure.
Appears in 2 contracts
Samples: Transition Services Agreement, Transition Services Agreement
Notice of Claim; Defense. (a) If The Optionee Indemnified Person shall give each Optionor prompt notice of any claim (iincluding third-party claims) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled without regard to indemnification under this Agreement (an “Indemnified Party”) whether the Indemnification Threshold has been satisfied), together with the estimated amount of such claim, and the Optionors shall have the right to assume the defense (at their expense) of any such third-party claim (other than a claim to be indemnified Regulatory Action or a Private Litigation) through counsel of their own choosing by an Indemnifying Party that does not involve a Third-Party Claim, then so notifying the Optionee Indemnified Party shall promptly send to Person within 30 days of the Indemnifying Party a written notice specifying the nature first receipt by any Optionor of such claim and notice from the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Optionee Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article XPerson; provided, however, that (A) the Indemnified Parties and their any such counsel shall cooperate with the Indemnifying Party and its counsel in connection with be reasonably satisfactory to Optionee. Failure to give such Action and (B) the Indemnifying Party notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Optionee Indemnified Person and any Optionor exists in respect of such third-party claim, the Optionee Indemnified Person shall be entitled to assume the conduct and control defense of such settlement third-party claim through counsel of its own choosing and, if the Indemnification Threshold has been satisfied, the Optionors shall pay the reasonable fees and expenses of such counsel. If the Indemnification Threshold has been satisfied, the Optionors shall be liable for the fees and expenses of counsel employed by any Optionee Indemnified Person for any period during which the Optionors have not assumed the defense if of any such third-party claim (w) other than during any period in which the Optionee Indemnified Person will have failed to give notice of the third-party claim for indemnification relates as provided above). If the Optionors assume such defense, the Optionee Indemnified Person shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Optionors, it being understood that the Optionors shall control such defense. If the Optionors choose to defend or arises prosecute a third-party claim, the Optionee Indemnified Person shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Optionors, the retention, and the provision to Optionors, of records and information reasonably relevant to such third-party claim, and making employees of the Company available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Optionors choose to defend or prosecute any third-party claim, the Optionee Indemnified Person shall agree to any settlement, compromise or discharge of such third-party claim that the Optionors may recommend and that, by its terms, discharges all the Optionee Indemnified Persons from the full amount of liability in connection with any criminal proceedingsuch third-party claim; provided, actionhowever, indictmentthat, allegation or investigation, (x) without the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf consent of the Optionee Indemnified Party or (y) Person, the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party Optionors shall not settle any such Action without consent to, and the relevant Optionee Indemnified Parties’ prior written consent (which Person shall not be unreasonably withheld)required to agree to, unless the entry of any judgment or enter into any settlement that (1i) the sole provides for injunctive or other non-monetary relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Partyaffecting any Optionee Indemnified Person, (2ii) there is no finding or admission of any violation of applicable law and (3) such settlement includes does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim by each claimant or plaintiff to each Optionee Indemnified Person that is the subject of such third-party claim, andor (iii) does not include as an unconditional term thereof the obligation to keep all terms and conditions of such settlement confidential.
(b) Notwithstanding the forgoing, if the Optionee Indemnified Person determines in addition to the foregoing the Indemnifying Party shall not settle any third good faith that there is a reasonable probability that a third-party claim with respect that may give rise to Taxes that could any indemnification obligation under this Article XI may materially adversely affect the Indemnified Party without prior written consent business of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if Company or any Company Subsidiary from and after the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02Closing Date, then the Optionee Indemnified Parties shall assume control Person may, by notice to each Optionor, conduct and control, through counsel of the defense in connection with such Actionits choosing, and the fees, charges and disbursements of no more than one such which counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by reasonably acceptable to the Indemnifying Party. Under no circumstances will Optionors, the Indemnifying Party have any liability in connection with any defense, compromise or settlement of any Action that is entered into without its prior written consent (which such claim. In any such case, the Optionors shall not be unreasonably withheld).
(c) From cooperate in connection therewith and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, furnish such records, personnel information and properties testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Optionee Indemnified Person in connection therewith; provided, that the Optionors may participate, through counsel chosen by it and at its own expense, in the defense of any such claim as to which the Optionee Indemnified Party Person has so elected to conduct and control the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties)defense thereof.
Appears in 2 contracts
Samples: Option Agreement (Pmi Group Inc), Option Agreement (Credit Suisse First Boston Usa Inc)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly (and in the case of clause (i) in any event within ten (10) Business Days after receipt by the Indemnified Party of notice of the Third-Party Claim) send to the Indemnifying Party a written notice specifying (to the nature extent known) in reasonable details the nature, facts and circumstances of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts shall be relieved not affect the rights of its indemnification obligations under this Article X only if (and then only the indemnified parties except to the extent that) it is that such failure actually prejudiced by prejudices the failure of the Indemnified Parties to provide a timely and adequate Claim NoticeIndemnifying Party.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) counsel. Should the Indemnifying Party notifies so elect to control the defense of a Third-Party Claim, the Indemnifying Party shall allow the Indemnified PartyParties a reasonable opportunity to participate, within thirty (30) days after at their own expense and through legal counsel of their choice, in the defense of such Third-Party Claim. The Indemnifying Party shall keep the Indemnified Party has given notice advised of the status of such Third-Party Claim and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto. The Indemnified Party shall deliver to the Indemnifying Party, that promptly after the Indemnifying Party is assuming the defense against Indemnified Party’s receipt thereof, copies of all notices and documents (or settlement ofincluding court papers) such Third Party Claim and will indemnify received by the Indemnified Party against such Third relating to the Third-Party Claim Claim. Notwithstanding anything to the contrary in its name orthis Agreement, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and or continue control of such settlement and the defense of any Third-Party Claim if (wA) the claim for indemnification such Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation (B) such Third-Party Claim seeks an injunction or investigationequitable relief against any Indemnified Party (other than in cases where the primary remedy being sought by such third party or Governmental Authority is monetary damages), (xC) such Third Party Claim has or would reasonably be expected to result in Losses (excluding, for the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to avoidance of doubt, for the Indemnified Party purpose of this clause (C), any Tax excess) in excess of the maximum amount for which the Indemnifying Party has not or cannot assert on behalf of is potentially liable with respect to such Third Party Claim, (D) the Indemnified Party’s counsel advises that a conflict of interest exists or would reasonably be expected to arise in the event the Indemnifying Party elects to control or defend any Third-Party Claim, (yE) the Indemnifying Party has failed or is failing to vigorously prosecute defend in good faith such Third Party Claim, (F) such Third-Party Claim arises out of any Release of any Hazardous Material or defend noncompliance with any Environmental Law at any Real Property or (G) such claimThird Party Claim arises out of or relates to any Intellectual Property constituting a Transferred Asset. The If, in the reasonable opinion of the Indemnifying Party’s outside counsel, the equitable relief or other relief portion of the Third-Party shall not settle any such Action Claim referenced in clause (B) above can be separated from the claim for money damages without prejudicial effect (other than a de minimis prejudicial effect) on the relevant Indemnified Parties’ non-monetary claims, then, with the prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), unless the Indemnifying Party shall be entitled to assume the defense of the portion of such claim relating to money damages. The Indemnifying Party shall have the right to settle, compromise or discharge a Third-Party Claim either (1I) with the sole prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) or (II) without any Indemnified Party’s consent if such settlement, compromise or discharge (x) provides for no relief provided is other than the payment of monetary damages that and such monetary damages are entirely paid or reimbursed in full by the Indemnifying Party, (2y) there is no finding or admission includes as an unconditional term thereof the giving by the Person(s) asserting such Third-Party Claim to all Indemnified Parties of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to Third-Party Claim and (z) does not contain an admission of liability on the foregoing the part of any Indemnified Party. The Indemnifying Party shall not settle consent to the entry of any third party claim with respect to Taxes that could adversely affect judgment which would impose any injunctive or equitable relief on the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within thirty (30) Business Days of receipt of written notice of such Third Party Claim or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Action and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense of the Indemnified Parties in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third-Party Claim, the parties hereto shall cooperate in the defense thereof in accordance with Section 11.02(c). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Third-Party Claim that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full Representatives reasonable access, during normal business hours, to the books, records, data, personnel and properties of the Indemnified Party (including by making any personnel of such Indemnified Party reasonably available to the Indemnifying Party for depositions, witness preparation, trial preparation and fact-gathering) to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable and documented out-of-pocket expenses of the Indemnified Parties); provided that the Indemnifying Party shall take reasonable precautions so as not to jeopardize any privilege reasonably available to an Indemnified Party in respect of any of its records.
(d) In the event of a Direct Claim, within thirty (30) days of delivery of a Claim Notice to the Indemnifying Party, if the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations, such dispute shall be resolved by litigation in a court of competent jurisdiction pursuant to Section 12.10.
(e) Without limiting any other provision of this Section 11.02, in the event of a claim relating to a Pre-Closing Product Liability (each such claim, a “Product Liability Claim”), until such time as Losses in respect of Pre-Closing Product Liability Claims are no longer Assumed Liabilities as a result of the application of the Pre-Closing Product Liability Cap, each party shall provide the other party with prompt notice of such Product Liability Claim and shall keep such other party informed on a reasonably prompt and timely basis with respect to the status thereof, including with respect to any payments made by, or requested from, such party in respect of all Product Liability Claims; provided that that any failure to give such notice or to provide any such amounts shall not affect the rights of Purchaser except to the extent that such failure actually prejudices the Seller.
Appears in 2 contracts
Samples: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Notice of Claim; Defense. (a) If (i) any third third-party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, audit in respect of any Tax liability, action or proceeding (each of the foregoing, a “Proceeding”) that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X VIII (a “Third-Party party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses Liabilities (a “Claim Notice”). The , provided that the Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then VIII only to the extent that) that it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice. With respect to liquidated Losses finally determined to be due and payable, if within thirty (30) days the Indemnifying Party has not contested the Claim Notice in writing, then the Indemnified Party will pay the full amount of such liquidated Losses within ten (10) days after the expiration of such thirty-day period. Any liquidated amount owed by an Indemnifying Party hereunder with respect to any Losses may be set-off by the Indemnified Party against any amounts owed by the Indemnified Party to the Indemnifying Party. Any amount finally determined to be due and owed by Seller to Purchaser pursuant to this Article VIII may, at the Purchaser’s option, be satisfied from the Escrowed Amount pursuant to the Escrow Agreement. The unpaid balance of any Losses shall bear interest at a rate per annum equal to the rate announced by Citibank, N.A. from time to time as its “Base Rate” plus two percent (2%) from the date notice thereof is given by the Indemnified Party to the Indemnifying Party.
(b) In the event of a Third-Party party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel. The Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Proceeding, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Proceeding and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle any such Action Proceeding without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission terms of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to provide for no relief other than the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent payment of such Indemnified Party, which consent shall not be unreasonably withheldmonetary damages. Notwithstanding the foregoing, (A) if the Indemnifying Party elects not to retain counsel and assume control of such defense or if both the Indemnifying Party and any Indemnified Party are parties to or subjects of such Proceeding and conflicts of interests exist between the Indemnifying Party and such Indemnified Party such that, in the Indemnified Parties’ reasonable discretion, separate representation by the Indemnified Parties’ counsel is otherwise not entitled advisable, and (B) with respect to do so any Proceedings relating to the matters described in accordance with this Section 10.02Sections 8.1(a)(iv), then (v) and (vi), the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Proceeding and assume control of the defense in connection with such ActionProceeding, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying PartyParty (and in the case of the matter described in Section 8.1(a)(vi), Purchaser shall use reasonable commercial efforts to keep Seller apprised of the status of such matter and any negotiations with the claimant related thereto). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) An Indemnified Party shall give the Indemnifying Party prompt written notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party ClaimVIII, then together with the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature estimated amount of such claim and the amount of all related Losses (a “Claim Notice”)claim. The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-that an Indemnified Party Claimasserts any right to indemnification hereunder, the Indemnifying Party may elect shall have the right to retain assume the defense (at the Indemnifying Party’s expense) of any such claim through counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies Party’s own choosing by so notifying the Indemnified Party, Party within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that receipt by the Indemnifying Party is assuming the defense against (or settlement of) of such Third Party Claim and will indemnify notice from the Indemnified Party against such Third Party Claim in its name orParty. In addition, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume liable (and shall reimburse the conduct Indemnified Party) for the fees and control expenses of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) counsel employed by the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party for any period during which the Indemnifying Party has not or cannot assert on behalf of assumed the defense thereof after having received such notice. If the Indemnifying Party assumes such defense, the Indemnified Party or (y) shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party failed shall control such defense. If the Indemnifying Party chooses to defend or is failing prosecute a third-party claim, the Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to vigorously the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Companies and the Subsidiaries available on a mutually convenient basis to provide additional information and explanation of, or to testify about, any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute or defend such any third-party claim. The , the Indemnifying Party shall not settle consent or agree to any settlement, compromise or discharge of such Action third-party claim without the relevant consent of an Indemnified Parties’ prior written consent Party (which consent shall not be unreasonably withheld), unless conditioned or delayed) (1A) if such judgment or settlement does not include as an unconditional term thereof the sole relief provided is monetary damages that are entirely paid giving by each claimant or reimbursed by plaintiff to the Indemnifying PartyIndemnified Party of a release from all liability in respect to such claim, (2B) there is no if such judgment or settlement would result in the finding or admission of any violation of applicable law Law by the Indemnified Party, or (C) if, as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment or settlement would materially adversely affect the Business or bind Purchaser or its Affiliates, in the case of Purchaser or its Affiliates, and (3) such settlement includes an unconditional release from all liability with respect to such the Retained Business, in the case of Seller or its Affiliates. If the Indemnified Party defends or prosecutes any third-party claim, andthe Indemnified Party shall not consent or agree to any settlement, in addition to compromise or discharge of such third-party claim without the foregoing consent of the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoingIn addition, if the Indemnifying Party elects shall not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with be liable under this Section 10.028.3 for any settlement, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into compromise or discharge effected without its prior written consent (which consent shall not be unreasonably withheld), conditioned or delayed) in respect of any claim for which indemnity may be sought hereunder. No indemnified party shall take any action the purpose of which is to prejudice the defense of any claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third third-party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, audit in respect of Tax liability, action or proceeding (each of the foregoing, a "Proceeding") that may give rise to Losses for which a party (an “"Indemnifying Party”") may be liable for indemnification under this Article X VIII (a “"Third-Party party Claim”") or (ii) any Person entitled to indemnification under this Agreement (an “"Indemnified Party”") shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party party Claim, then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses Liabilities (a “"Claim Notice”"). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only VIII to the extent that) that it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel. The Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Proceeding, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Proceeding and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle any such Action Proceeding without the relevant Indemnified Parties’ ' prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission terms of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to provide for no relief other than the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent payment of such Indemnified Party, which consent shall not be unreasonably withheldmonetary damages. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or is otherwise not entitled fails to give reasonably prompt notice of its intention to do so in accordance with this Section 10.02so) or if both the Indemnifying Party and any Indemnified Party are parties to or subjects of such Proceeding and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Proceeding and assume control of the defense in connection with such ActionProceeding, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Samples: Stock Purchase Agreement (Interpublic Group of Companies Inc)
Notice of Claim; Defense. (a) If (i) any third third-party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, audit in respect of Tax liability, action or proceeding (each of the foregoing, a “Proceeding”) that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X VI (a “Third-Party party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses Liabilities (a “Claim Notice”). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (obligations, except and then only to the extent that) it is actually prejudiced that the Indemnifying Party forfeits rights or defenses by the failure reason of the Indemnified Parties to provide a timely and adequate Claim Noticesuch failure.
(ba) In the event of a Third-Party party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel. The Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Proceeding, provided that
(i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Proceeding and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) Proceeding. If the Indemnifying Party is a Seller, such Indemnifying Party shall not be entitled have the right to assume defend or direct the conduct and control defense of any such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, Third-party Claim that (x) the Indemnified Party is advised asserted directly by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of a Person that is a supplier or customer of the Indemnified Party Company, or (y) seeks an injunction or other equitable relief against the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimIndemnified Party. The Indemnifying Party shall not settle any such Action Proceeding without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole terms of such settlement provide for no relief provided is other than the payment of monetary damages that are entirely paid or reimbursed by and provides, in customary form, for the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release of each Indemnified Party from all liability liabilities and obligations in connection with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third Third-party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldClaim. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Proceeding and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Proceeding and assume control of the defense in connection with such ActionProceeding, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. If the Indemnifying Party elects not to compromise or defend such Third-party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, is not otherwise permitted to assume the defense of such Third-party Claim or fails to diligently prosecute the defense of such Third-party Claim, the Indemnified Party may pay, compromise, defend such Third-party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-party Claim. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheld).
(cb) From and after the delivery of a Claim Notice, at Sellers and Purchaser shall cooperate with each other in all reasonable respects in connection with the reasonable request defense of the Indemnifying Partyany Third-party Claim, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, including making available (subject to the booksprovisions of Section 5.4) records relating to such Third-party Claim and furnishing, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party without expense (other than for reasonable reimbursement of actual out-of-pocket expenses expenses) to the defending party, management employees of the Indemnified Parties)non-defending party as may be reasonably necessary for the preparation of the defense of such Third-party Claim.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (StarTek, Inc.)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party Each person indemnified under Sections 10.1 and 10.2 above (an “"Indemnified Person") agrees that, upon the service of a summons or other initial legal process upon the Indemnified Person in any action or proceeding, or upon the Indemnified Person's receipt of written notification of the commencement of any investigation, inquiry, or proceeding in respect of which indemnity may be sought by the Indemnified Person under Section 10.1 or 10.2 above, the Indemnified Person will promptly give written notice (the "Notice") of such service or notification to the party from whom indemnification may be sought hereunder (the "Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”"). The Indemnifying Party No indemnification provided for in Section 10.1 or 10.2 above shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to any Indemnified Person who shall fail so to give the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoingNotice, if the Indemnifying Party elects to whom such Notice was not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control given was unaware of the defense in connection with such Actionaction, and suit, investigation, inquiry or proceeding to which the feesNotice would have related, charges and disbursements of no more than one such counsel per jurisdiction selected by to the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will extent the Indemnifying Party have was prejudiced by the failure to give the Notice; but the omission so to notify such Indemnifying Party of any such service or notification shall not relieve such Indemnifying Party from any liability which it may have to any Indemnified Person for contribution or otherwise than on account of such Sections. An Indemnifying Party shall be entitled at its own expense to participate in connection with any settlement the defense of any Action that is entered into without its prior action, suit or proceeding against, or investigation or inquiry of, an Indemnified Person. An Indemnifying Party shall be entitled, if it so elects within a reasonable amount of time after receipt of the Notice, by giving written consent notice (herein called the "Notice of Defense") to all Indemnified Persons, to assume the entire defense of such action, suit, investigation, inquiry or proceeding, in which event such defense shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Noticeconducted, at the reasonable request expense of the Indemnifying Party, each by counsel chosen by the Indemnifying Party reasonably satisfactory to the Indemnified Party shall grant Persons; provided, however, that (i) if any Indemnified Person reasonably determines that there may be a conflict between the positions of the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to of such Indemnified Person in conducting the books, records, personnel and properties defense of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).such action,
Appears in 1 contract
Samples: License Agreement (Netmed Inc)
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority Body institutes, threatens or asserts any Action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may be liable for indemnification under this Article X IX (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the an Indemnified Parties Party to provide give a timely and adequate Claim NoticeNotice shall not relieve the Indemnifying Party of its obligations under this Article IX except to the extent that the Indemnifying Party is actually prejudiced by such failure.
(b) In The Indemnifying Party may, by notice delivered within twenty (20) Business Days after the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal or insurance enforcement proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 9.3(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 9.3(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimAction. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Partydamages, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to Liability arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Indemnified
42115819.1 Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the such Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties), subject to any bona fide claims of attorney-client privilege.
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within sixty (60) Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article IX; provided that the failure of an Indemnifying Party to give such notice shall not affect such Indemnifying Party’s obligations under this Article IX except to the extent that the Indemnified Party is prejudiced by such failure to give such notice.
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying (to the extent known) the nature of such claim and the amount amount, or a good faith estimate of the amount, of all related Losses losses (a “Claim Notice”). The Indemnifying Party ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts shall be relieved not affect the rights of its indemnification obligations under this Article X only if (and then only the indemnified parties except to the extent that) it is that such failure actually prejudiced by prejudices the failure of the Indemnified Parties to provide a timely and adequate Claim NoticeIndemnifying Party.
(b) In the event of a Third-Party ClaimClaim (excluding any Third-Party Claim arising under Section 11.01(b)), the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Should the Indemnifying Party so elect to assume the defense of such Third-Party Claim, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action, and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its Party’s counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimAction. The Indemnifying Party shall not settle any have the right to settle, compromise or discharge such Action without Third-Party Claim either (A) with the relevant Indemnified Parties’ prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld), unless conditioned or delayed) or (1B) without any Indemnified Party’s consent if such settlement, compromise or discharge (x) provides for no relief relating to the sole relief provided is Indemnified Parties other than the payment of monetary damages that and such monetary damages are entirely paid or reimbursed in full by the Indemnifying Party, (2y) there is involves no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3z) such settlement includes an unconditional express release of the Indemnified Party from all liability with respect to arising from such claim, and, in addition to the foregoing the Indemnifying Third-Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldClaim or Action. Notwithstanding the foregoing, if (1) the Indemnifying Party elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within a reasonable period of time or is otherwise not entitled (2) both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Action and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense of the Indemnified Parties in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Whether the Indemnifying Party or the Indemnified Party controls the defense of such Third-Party Claim, the parties hereto shall reasonably cooperate in the defense thereof in accordance with Section 11.02(d). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent. This Section 11.02(b) shall not apply in the case of any Tax Controversy or Specified Retained Litigation.
(c) Seller shall control the defense of the Specified Retained Litigation (and any related customer indemnification claims) in all respects, including any decision whether to appeal. Notwithstanding the foregoing sentence, Seller shall have the right to settle, compromise or discharge the Specified Retained Litigation (and any related customer indemnification claims) only (A) with the prior written consent (of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed and shall be subject to Purchaser’s obligations under Section 11.01(b), provided, that Purchaser’s withholding, conditioning or delaying of consent shall be deemed unreasonable if based on the settlement, compromise or discharge (i) not providing a license or other grant of rights under Intellectual Property (including by means of covenants not to xxx) for any operations, businesses, products, product lines or services other than the Specified Products or (ii) including a non-exclusive license or other grant of rights under Patents included in Company Intellectual Property (including by means of covenants not to xxx) so long as the Business receives the benefit of a license or other grant of rights under the Specified Retained Litigation Patents (including by means of covenants not to xxx) asserted in the Specified Retained Litigation that is the subject of such settlement, compromise or discharge, or (B) without Purchaser’s consent if such settlement, compromise or discharge (x) provides for no relief relating to any Purchaser Indemnified Person other than the payment of monetary damages, including royalty payments, and (y) involves no finding or admission of any breach or violation by any Purchaser Indemnified Person. Purchaser shall fully cooperate with Seller in the defense of the Specified Retained Litigation (and any related customer indemnification claims), including, without limitation, as provided in Section 6.06 and Section 11.02(d).
(cd) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its employees, counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties); provided that the Indemnifying Party shall take reasonable precautions so as not to jeopardize any privilege reasonably available to an Indemnified Party in respect of any of its records.
(e) In the event of a Direct Claim, within thirty (30) calendar days of delivery of a Claim Notice to the Indemnifying Party, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within such 30-day period, such dispute shall be resolved by litigation in a court of competent jurisdiction pursuant to Section 12.10.
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. Purchaser or the Sellers, as the case may be (athe "INDEMNIFIED Party"), shall give the other party (the "INDEMNIFYING PARTY") If (i) prompt notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X IX, together with the estimated amount of such claim, and the Indemnifying Party shall have the right to assume the defense (a “Third-at the Indemnifying Party's expense) of any such claim through counsel of the Indemnifying Party's own choosing by so notifying the Indemnified Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “within 30 days of the first receipt by the Indemnifying Party of such notice from the Indemnified Party”) ; PROVIDED, HOWEVER, that any such counsel shall have be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a claim conflict with respect to any significant issue between any Purchaser Indemnified Person or any Seller Indemnified Person, as the case may be, and the Indemnifying Party exists in respect of such third-party claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be indemnified by an retained in order to eliminate such conflict. If the Indemnifying Party that does not involve chooses to defend or prosecute a Thirdthird-Party Claimparty claim, then the Indemnified Party shall promptly send to cooperate in the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party defense or prosecution thereof, which cooperation shall be relieved of its indemnification obligations under this Article X only if (and then only include, to the extent that) it is actually prejudiced reasonably requested by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party ClaimIndemnifying Party, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action retention, and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Targeted Businesses available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any third-party claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such third-party claim that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim may recommend and will indemnify that, by its terms, discharges the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel Affiliates from the full amount of liability in connection with such Action and (B) third-party claim; PROVIDED, HOWEVER, that, the Indemnifying Party shall not be entitled to assume the conduct consent to, and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it shall not be required to agree to, the entry of any judgment or enter into any settlement that there are one (i) provides for injunctive or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of other non-monetary relief affecting the Indemnified Party or (y) any Affiliate of the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2ii) there is no finding or admission of any violation of applicable law and (3) such settlement includes does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant that is the Indemnifying Party and its counselsubject of such third-party claim, experts and representatives full access, during normal business hours, to or (iii) contains any admission of wrongdoing by the books, records, personnel and properties Targeted Businesses or any of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties)their employees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sylvan Learning Systems Inc)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens institutes or asserts any Action Proceeding that may give rise to Losses for which a party person (an “Indemnifying Party”) may be liable for indemnification under this Article X IX (a “Third-Third Party Claim”) or (ii) any Person person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Third Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and and, to the extent then known, the amount of all related Losses Liabilities (a “Claim Notice”). The In the event an Indemnified Party fails to provide a timely and adequate Claim Notice, the Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then IX as a result of such failure, only to the extent that) that it is actually materially prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Noticesuch failure.
(b) In the event of a Third-Third Party Claim for which the Indemnifying Party has acknowledged in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel so long as and other defense costs. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding; provided that (i) the Indemnifying Party notifies shall have the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim right to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) defend such Third Party Claim by all appropriate proceedings and, so long as it diligently pursues such defense, shall have full control of such defense and will indemnify the Indemnified Party against such Third Party Claim in its name orproceedings, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle any such Action not, without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheldwithheld or delayed), (A) settle or compromise any such Proceeding unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by terms of such settlement contain a complete and unconditional release of the Indemnifying Party, (2) there is no finding or admission Indemnified Party of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect Liability related to such claim, and, Proceeding or (B) settle or compromise any such Proceeding in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes manner that could may adversely affect the Indemnified Party without prior written consent other than as a result of such Indemnified Party, which consent shall not be unreasonably withheldmoney damages or other money payments. Table of Contents
(c) Notwithstanding the foregoing, if (i) the Indemnifying Party elects not to retain counsel and assume control of such defense defense, (ii) both the Indemnifying Party and any Indemnified Party are parties to or subjects of such Proceeding and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, or (iii) the Proceeding is otherwise not entitled reasonably likely to do so in accordance with this Section 10.02establish a precedential custom or practice that is materially detrimental to the continuing business interests of the Indemnified Party, then the Indemnified Parties shall may retain counsel reasonably acceptable to the Indemnifying Party in connection with such Proceeding and assume control of the defense in connection with such Action, Proceeding and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability Liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheldwithheld or delayed).
(cd) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(e) If there is a Proceeding at any time that concerns the business or operations of the Company and its Subsidiaries before the Closing Date and a Claim Notice is not submitted with respect to such Proceeding, then, at the reasonable request of any of the Purchasing Parties, on the one hand, or any of the Selling Parties or the Company, on the other hand, Seller Parent and Seller shall make those persons who at the relevant times were employees of the Selling Parties and the Company and its Subsidiaries, or Purchaser shall make those persons who at the relevant times were Employees, as the case may be, available to cooperate with the requesting party and its Affiliates (including by making such employees available to provide information, discovery and testimony), to the extent reasonable and without interrupting the business or operations of the party receiving such request and of its Affiliates, in each case solely for purposes of permitting the preparation for, defense of and participation in such litigation or Proceeding by any of the requesting party, its Affiliates or their respective agents, directors, officers and employees; provided that the requesting party shall reimburse all reasonable out-of-pocket expenses incurred by the party receiving such request, its Affiliates and their respective agents, directors, officers and employees in complying with this undertaking and, since such payments, if any, will not be made pursuant to an indemnity claim, such payments shall not be taken into account for purposes of the limitations set forth in Section 9.02(b) or 9.03(b).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority institutes, threatens Body institutes or asserts any Action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person that may be entitled to indemnification under this Agreement (an “Indemnified Party”) shall have desires to make a claim not involving a Third-Party Claim to be indemnified by an Indemnifying Party that does not involve a Third-Party ClaimParty, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses to the extent they are ascertainable (a “Claim Notice”). The Indemnifying Party shall not be relieved from any of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the XI as a result of a failure of the Indemnified Parties Party to provide a timely and adequate Claim NoticeNotice except to the extent that it is prejudiced by such failure, it being understood that Claim Notices in respect of a breach of a representation or warranty must be delivered prior to the expiration of any applicable survival period specified in Section 11.1(c)(i) for such representation or warranty; provided, that if, prior to such applicable date, the Indemnified Party shall have notified the Indemnifying Party in accordance with the requirements of this Section 11.2(a) of a claim for indemnification under this Article XI (whether or not formal legal action shall have been commenced based upon such claim), such claim shall continue to be subject to indemnification in accordance with this Article XI notwithstanding the passing of such applicable date.
(b) In The Indemnifying Party may, by notice delivered within twenty (20) Business Days of the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnified Party may take any actions reasonably necessary to defend any Third-Party Claim prior to the time that it receives notice from the Indemnifying Party as contemplated by the preceding sentence. The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party or the Business that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates or the operation of the Business.
(c) Subject to Section 11.2(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 11.2(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided, that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action. To the extent such action can be taken in a way that does not unreasonably jeopardize the attorney-client privilege: (i) the Indemnified Party’s right to participate in the defense of any Action shall include the right to attend all significant internal meetings, all meetings with representatives of plaintiffs, hearings and the like; and (Bii) counsel for a Indemnified Party also shall be given a reasonable opportunity to comment upon all memoranda of law, pleadings and briefs and other documents relating to the Third-Party Claim, and the Indemnifying Party and its counsel shall not be entitled give reasonable consideration to assume the conduct and control comments of such settlement and defense if (w) the claim counsel for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimParty. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid and do not result in a material increase to the cost of administering the Business under any of the Administrative Services Agreements for which Buyer or reimbursed by the Indemnifying Partyits Affiliate does not get compensated, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to Liability arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects does not to promptly retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall may retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall such consent not to be unreasonably withheld, delayed or conditioned).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within twenty (20) Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article XI.
(f) If there shall be any conflicts between the provisions of this Section 11.2 and Section 12.2(b) (relating to Tax contests), the provisions of Section 12.2(b) shall control with respect to Tax contests.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hartford Financial Services Group Inc/De)
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority Body institutes, threatens or asserts any Action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may be liable for indemnification under this Article X IX (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the an Indemnified Parties Party to provide give a timely and adequate Claim NoticeNotice shall not relieve the Indemnifying Party of its obligations under this Article IX except to the extent that the Indemnifying Party is actually prejudiced by such failure.
(b) In The Indemnifying Party may, by notice delivered within twenty (20) Business Days after the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal or insurance enforcement proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 9.3(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 9.3(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimAction. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Partydamages, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to Liability arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).Indemnified
Appears in 1 contract
Notice of Claim; Defense. Subject in all respects to Section 8.3(e) for Covered DOJ Actions:
(a) If (i) any third party or Governmental Authority Entity institutes, threatens or asserts any Action or other claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X ARTICLE VIII (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall may in good faith have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then the Indemnified Party shall will promptly send to the Indemnifying Party a written notice specifying (to the extent known) the nature of such claim and the amount of all related Losses (a “Claim Notice”). The ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts will not affect the rights of the Indemnified Party except to the extent that such failure actually prejudices the Indemnifying Party and, to the extent prejudiced, the obligation of the Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only reduced to the extent that) it is actually prejudiced by the failure of any actual monetary prejudice resulting from the Indemnified Parties Party’s delay or failure to provide a timely and adequate Claim Noticegive any such notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall will pay the fees, charges and disbursements of such counsel so long as (i) counsel; provided, that, if the Indemnifying Party notifies elects to assume the Indemnified Partydefense of such Third Party Claim, within thirty it shall (30x) notify Purchaser in writing as promptly as reasonably practicable (but in no event later than twenty (20) days after the Indemnified Party has given notice receipt of the Third-Party Claim Notice) of its intent to the Indemnifying Partydo so, and (y) acknowledge in writing that the Indemnifying Party it is assuming the defense against (or settlement of) such Third Party Claim and will obligated to indemnify the Indemnified Party against with respect to such Third Third-Party Claim in hereunder. Notwithstanding the foregoing, the parties hereto agree that Seller Parent shall assume and control the defense of the Horizon CID without any further action by Seller Parent. If the Indemnifying Party fails to take reasonable steps necessary to defend diligently the Third-Party Claim after notifying Purchaser (on behalf of the applicable Indemnified Party) of its name orassumption of the defense of such Third-Party Claim, if necessary, in the name of the Indemnified Party may assume such defense, and the reasonable fees of its attorneys will be covered by the indemnity provided for in accordance with this ARTICLE VIII upon determination of the terms Indemnifying Parties’ indemnity obligations. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnified Parties may participate, at their own expense and limitations through legal counsel of this Article X; their choice, in any such Action, provided, that (Ai) subject to the preceding sentence, the Indemnifying Party may elect to continue to control the defense of the Indemnified Parties in connection with such Action and (ii) the Indemnified Parties and their counsel shall will reasonably cooperate with the Indemnifying Party and its Party’s counsel in connection with such Action and Action. The Indemnifying Party will have the right to settle, compromise or discharge a Third-Party Claim either (A) with the prior written consent of the applicable Indemnified Party (which consent will not be unreasonably withheld, conditioned or delayed) or (B) without any Indemnified Party’s consent if such settlement, compromise or discharge provides for no relief other than the payment of monetary damages (including monetary fines or penalties) and such monetary damages are paid in full by the Indemnifying Party, requires no admission of Liability by any Indemnified Party (with no right of indemnification or other contribution from the Indemnified Part or its Affiliates) and contains a full release of the Indemnified Party and its Affiliates from any Liabilities arising out of the Third-Party Claim. Notwithstanding the foregoing, if (i) the Indemnifying Party shall elects not be entitled to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume the conduct and control of such settlement and defense if of a Third-Party Claims within twenty (w20) days of receiving a Claims Notice with respect to such Third-Party Claim, (ii) the Indemnified Party determines (after obtaining advice of counsel) that an actual or apparent conflict of interest exists between the Indemnifying Party and such Indemnified Party that precludes effective joint representation with respect to such Third-Party Claim, (iii) such Third-Party Claim involves a bona fide claim for indemnification injunctive relief against the Indemnified Party with respect to such Action or claim, (iv) such Third-Party Claim relates to or arises in connection with any criminal proceeding, actionAction, indictment, investigation or allegation or investigation, (xv) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert Purchaser (on behalf of the applicable Indemnified Party) reasonably believes such Third-Party Claim, if adversely determined, would impair in any material respect the business or operations of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02its Affiliates, then the Indemnified Parties shall Party may upon twenty (20) days written notice to the Indemnifying Party retain counsel reasonably acceptable to the Indemnifying Party in connection with such Third-Party Claim and assume control of the defense of the Indemnified Parties in connection with such ActionThird-Party Claim, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall will be reimbursed payable by the Indemnifying Party; provided, the Indemnifying Parties may continue to participate, at their own expense and through legal counsel of their choice, in any such Action. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third-Party Claim, the parties hereto will cooperate in the defense thereof in accordance with Section 8.3(c) and, in the case of any Covered DOJ Action, in accordance with Section 8.3(e). Under no circumstances will the Indemnifying Party have any liability Liability in connection with any settlement of any Action Third-Party Claim that is entered into without its prior written consent (which shall will not be unreasonably withheld, conditioned or delayed).
(c) From and after the delivery of a Claim NoticeNotice involving a Third Party Claim, at the reasonable written request of the Indemnifying Party, each Indemnified Party shall will grant the Indemnifying Party and its counsel, experts and representatives full access, Representatives reasonable access during normal business hours, and only in such a manner as to not unreasonably interfere with the normal operations of the relevant Indemnified Party, to the books, books and records, personnel Contracts, documents, personnel, premises and properties of the Indemnified Party to the extent reasonably related to the Claim Notice Notice. Notwithstanding the foregoing or anything contained in this Agreement (but subject to Section 8.3(e)), no Indemnified Party will have any obligation to make available to the Indemnifying Party any information if making such information available would be reasonably likely to (i) jeopardize any attorney-client privilege (it being understood that the Indemnified Party will cooperate in any reasonable efforts and requests for waivers (including entry into a joint defense agreement or other arrangement, in a form reasonably satisfactory to the parties, if either party determines that such joint defense agreement or other arrangement is reasonably necessary to make available such information hereunder) or (ii) contravene any applicable Law, fiduciary duty or binding agreement (including any confidentiality agreement to which the Indemnified Party is a party) (it being understood that the Indemnified Party will cooperate in any reasonable efforts and requests for waivers that would enable otherwise required disclosure to the Indemnifying Party to occur without contravening such Law, duty or agreement). The Indemnified Party shall be entitled to reimbursement by the Indemnifying Party for all reasonable out-of-pocket expenses incurred in connection with any cooperation requested by the Indemnifying Party under this Section 8.3(c).
(d) In the event of a Direct Claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations, such dispute will be resolved by litigation in a court of competent jurisdiction pursuant to Section 10.6. In the event of a dispute between an Indemnified Party and an Indemnifying Party relating to a Direct Claim, if the Indemnified Party and the Indemnifying Party reach an agreement to resolve such dispute, a memorandum setting forth such agreement will be prepared and signed by all applicable parties. In the event a dispute between an Indemnified Party and an Indemnifying Party relating to a Direct Claim results in litigation in a court of competent jurisdiction pursuant to Section 10.6, the final and non-appealable judgment with respect to such dispute will be final, binding and conclusive upon the parties thereto.
(e) Notwithstanding anything to the contrary in this Agreement, with respect to: (A) the Horizon CID and (B) all investigations, litigation, appeals, or other legal proceedings arising out of or related to the facts and circumstances giving rise to the Horizon CID (each, clauses (A) and (B), a “Covered DOJ Action”) regardless of whether such investigations, litigation, appeals, or other legal proceedings arise (or a party becomes subject to such investigations, litigation, appeals, or other legal proceedings) prior to or after the Closing:
(i) (A) the Indemnifying Party shall have control over and the right to direct the defense, appeals, or settlement, including the right to retain counsel of its choice and to assert and prosecute any applicable counterclaims, and (B) the Indemnifying Party will pay the fees, charges and disbursements of such counsel; provided, that if the Indemnifying Party fails to actively defend such Covered DOJ Action, then the Indemnified Parties shall have the option to retain counsel reasonably acceptable to the Indemnifying Party in connection with such Covered DOJ Action and assume control of the defense of the Indemnified Parties in connection with such Covered DOJ Action. If the Indemnifying Party assumes the defense of any such Covered DOJ Action in accordance with this Section 8.3(e), the Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Covered DOJ Action, provided, that subject to the preceding sentence, the Indemnifying Party may elect to continue to control the defense of the Indemnified Parties in connection with such Action and the Indemnified Parties and their counsel will reasonably cooperate with the Indemnifying Party’s counsel in connection with such Action.
(ii) Without limitation to any other term of this Agreement, the Indemnified Party and its Affiliates shall cooperate with the Indemnifying Party in all reasonable respects in connection with any Covered DOJ Action, including promptly providing the Indemnifying Party with copies of all files or documents in its or any of its Affiliates’ possession relating to any Covered DOJ Action (to the extent not previously provided to the Indemnifying Party), making reasonably available to the Indemnifying Party the servers of the Indemnified Party and its Affiliates as necessary to facilitate access to such files or documents, and making reasonably available to the Indemnifying Party and its employees, counsel, experts, and representatives employees of the Indemnified Party or any of its Affiliates with knowledge of the matters at issue, at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified PartiesParty).
(iii) The Indemnified Party will not admit any liability, file any papers or consent to the entry of any judgment or enter into any settlement agreement, compromise or discharge with respect to any Covered DOJ Action without the prior written consent of the Indemnifying Party (except as set forth in the last sentence of this Section 8.3(e)(iii)). The Indemnifying Party will have the right to control (subject to the first proviso of Section 8.3(e)(i)), settle, compromise or discharge a Covered DOJ Action with DOJ or any private relator without any Indemnified Party’s consent, unless such a DOJ resolution includes an admission of liability, any required contribution or indemnification by the Indemnified Party or any commitment for equitable relief or conditions with any federal agency. The parties agree that for any settlement, compromise or discharge of a Covered DOJ Action subject to Section 8.2(a)(vi), such payment will be paid in full by Seller Parent or a member of the Seller Group (and not, for the avoidance of doubt, by the Acquired Companies or Purchaser). If a Covered DOJ Action involves a commitment for equitable relief or conditions with a federal agency other than DOJ or otherwise cannot be settled by the Indemnifying Party without consent of the Indemnified Party as set forth above in this Section 8.3(e)(iii), the Indemnifying Party will have the right to control (subject to the first proviso of Section 8.3(e)(i)), settle, compromise or discharge the matter with the prior written consent of the applicable Indemnified Party, which consent will not be unreasonably withheld, provided that the Indemnified Party may take into consideration the impact on the business of the Indemnified Party and its Affiliates. If a Covered DOJ Action is resolved with DOJ such that no further obligation or contribution is required or owed by the Indemnifying Party to any private relator or federal agency, and the only matter that remains is negotiation or resolution of prospective equitable conditions with a federal agency other than DOJ, then the Indemnified Party may control, settle and compromise (at the Indemnified Party’s own expense) such matter with such other federal agency, provided that such equitable conditions do not involve or burden the current business operations of the Indemnifying Party.
(iv) The parties each shall keep the other informed of the status of any Covered DOJ Action and notify one another promptly following the assertion of any claims or filings of any court documents in connection with any Covered DOJ Action. The parties each shall notify the other promptly following its or any of its Affiliates’ receipt of any and all subpoenas, orders and material requests relating to any Covered DOJ Action.
(v) Notwithstanding anything herein to the contrary, the Indemnified Party agrees that the Indemnifying Party’s counsel may maintain copies of all information, materials and documents that may be needed in connection with any Covered DOJ Action.
(vi) The parties hereto agree to enter into a joint defense agreement in a form reasonably satisfactory to the parties prior to Closing.
(vii) In the event of a conflict between this Section 8.3(e) and any other provision of this Agreement, this Section 8.3(e) shall control.
Appears in 1 contract
Samples: Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying (to the extent known) the nature of such claim and the amount amount, or a good faith estimate of the amount, of all related Losses losses (a “Claim Notice”). The Indemnifying Party ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts shall be relieved not affect the rights of its indemnification obligations under this Article X only if (and then only the indemnified parties except to the extent that) it is that such failure actually prejudiced by prejudices the failure of the Indemnified Parties to provide a timely and adequate Claim NoticeIndemnifying Party.
(b) In the event of a Third-Party ClaimClaim (excluding any Third-Party Claim arising under Section 11.01(b)), the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Should the Indemnifying Party so elect to assume the defense of such Third-Party Claim, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action, and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its Party’s counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimAction. The Indemnifying Party shall not settle any have the right to settle, compromise or discharge such Action without Third-Party Claim either (A) with the relevant Indemnified Parties’ prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld), unless conditioned or delayed) or (1B) without any Indemnified Party’s consent if such settlement, compromise or discharge (x) provides for no relief relating to the sole relief provided is Indemnified Parties other than the payment of monetary damages that and such monetary damages are entirely paid or reimbursed in full by the Indemnifying Party, (2y) there is involves no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3z) such settlement includes an unconditional express release of the Indemnified Party from all liability with respect to arising from such claim, and, in addition to the foregoing the Indemnifying Third-Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldClaim or Action. Notwithstanding the foregoing, if (1) the Indemnifying Party elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within a reasonable period of time or is otherwise not entitled (2) both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Action and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense of the Indemnified Parties in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Whether the Indemnifying Party or the Indemnified Party controls the defense of such Third-Party Claim, the parties hereto shall reasonably cooperate in the defense thereof in accordance with Section 11.02(d). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent. This Section 11.02(b) shall not apply in the case of any Tax Controversy or Actions referenced in the Specified Retained Litigation.
(c) Seller shall control the defense of the Actions referenced in the Specified Retained Litigation (and any related customer indemnification claims) in all respects, including any decision whether to appeal. Notwithstanding the foregoing sentence, Seller shall have the right to settle, compromise or discharge the Actions referenced in the Specified Retained Litigation (and any related customer indemnification claims) only (A) with the prior written consent (of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed and shall be subject to Purchaser’s obligations under Section 11.01(b), provided, that Purchaser’s withholding, conditioning or delaying of consent shall be deemed unreasonable if based on the settlement, compromise or discharge (i) not providing a license or other grant of rights under Intellectual Property (including by means of covenants not to xxx) for any operations, businesses, products, product lines or services other than the Specified Products or (ii) including a non-exclusive license or other grant of rights under Patents included in Company Intellectual Property (including by means of covenants not to xxx) so long as the Business receives the benefit of a license or other grant of rights under the Specified Retained Litigation Patents (including by means of covenants not to xxx) asserted in the Specified Retained Litigation that is the subject of such settlement, compromise or discharge, or (B) without Purchaser’s consent if such settlement, compromise or discharge (x) provides for no relief relating to any Purchaser Indemnified Person other than the payment of monetary damages, including royalty payments, and (y) involves no finding or admission of any breach or violation by any Purchaser Indemnified Person. Purchaser shall fully cooperate with Seller in the defense of the Actions referenced in the Specified Retained Litigation (and any related customer indemnification claims), including, without limitation, as provided in Section 6.06 and Section 11.02(d).
(cd) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its employees, counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties); provided that the Indemnifying Party shall take reasonable precautions so as not to jeopardize any privilege reasonably available to an Indemnified Party in respect of any of its records.
(e) In the event of a Direct Claim, within thirty (30) calendar days of delivery of a Claim Notice to the Indemnifying Party, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within such 30-day period, such dispute shall be resolved by litigation in a court of competent jurisdiction pursuant to Section 12.10.
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly and any event within twenty (20) days after receipt by the Indemnified Party of notice of the Third-Party Claim or the Indemnified Party first becoming aware of the underlying facts or circumstances that are reasonably expected to give rise to a Third Party Claim or Direct Claim send to the Indemnifying Party a written notice specifying (to the nature extent known) in reasonable details the nature, facts and circumstances of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party , provided, however, that any failure to give such Claim Notice or to provide such facts and amounts shall be relieved not affect the rights of its indemnification obligations under this Article X only if (and then only the Indemnified Parties, except to the extent that) it is that such failure actually prejudiced prejudices the Indemnifying Party (and such actual prejudice shall in particular exist if the Seller loses an opportunity to seek recourse against Spectrum under the Spectrum Battery Acquisition Agreement because of the failure by the failure of the Indemnified Parties Purchaser to give such Claim Notice or to provide a timely such facts and adequate Claim Noticeamounts).
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) counsel. Should the Indemnifying Party notifies so elect to control the defense of a Third-Party Claim, the Indemnifying Party shall allow the Indemnified PartyParties a reasonable opportunity to participate, within thirty (30) days after at their own expense and through legal counsel of their choice, in the defense of such Third-Party Claim. The Indemnifying Party shall keep the Indemnified Party has given notice advised of the status of such Third-Party Claim and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto. The Indemnified Party shall deliver to the Indemnifying Party, that promptly after the Indemnifying Party is assuming the defense against Indemnified Party’s receipt thereof, copies of all notices and documents (or settlement ofincluding court papers) such Third Party Claim and will indemnify received by the Indemnified Party against such Third relating to the Third-Party Claim Claim. Notwithstanding anything to the contrary in its name orthis Agreement, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and or continue control of such settlement and the defense of any Third-Party Claim if (wA) the claim for indemnification such Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation (B) such Third-Party Claim seeks an injunction or investigationequitable relief against any Indemnified Party (other than in cases where the primary remedy being sought by such third party or Governmental Authority is monetary damages), (xC) except where Seller is the Indemnified Indemnifying Party and is advised by counsel chosen by it that there are one required under the terms of the Spectrum Battery Acquisition Agreement to permit Spectrum to control the defense of such Third-Party Claim in order for Seller to seek indemnification from Spectrum in connection with such Third-Party Claim, such Third-Party Claim has or more defenses available would reasonably be expected to result in Losses (excluding, for the Indemnified Party avoidance of doubt, for the purpose of this clause (C), any Tax excess) in excess of the maximum amount for which the Indemnifying Party has not or cannot assert on behalf of is potentially liable with respect to such Third Party Claim, (D) the Indemnified Party’s counsel advises that a conflict of interest exists or would reasonably be expected to arise in the event the Indemnifying Party elects to control or defend any Third-Party Claim, (yE) the Indemnifying Party has failed or is failing to vigorously prosecute defend in good faith such Third-Party Claim, (F) such Third-Party Claim arises out of any Release of any Hazardous Material or defend noncompliance with any Environmental Law at any Real Property or (G) such claimThird-Party Claim arises out of or relates to any Intellectual Property constituting a Transferred Asset. The If, in the reasonable opinion of the Indemnifying Party’s outside counsel, the equitable relief or other relief portion of the Third-Party shall not settle any such Action Claim referenced in clause (B) above can be separated from the claim for money damages without prejudicial effect (other than a de minimis prejudicial effect) on the relevant Indemnified Parties’ non-monetary claims, then, with the prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), unless the Indemnifying Party shall be entitled to assume the defense of the portion of such claim relating to money damages. The Indemnifying Party shall have the right to settle, compromise or discharge a Third-Party Claim either (1I) with the sole prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) or (II) without any Indemnified Party’s consent if such settlement, compromise or discharge (x) provides for no relief provided is other than the payment of monetary damages that and such monetary damages are entirely paid or reimbursed in full by the Indemnifying Party, (2y) there is no finding or admission includes as an unconditional term thereof the giving by the Person(s) asserting such Third-Party Claim to all Indemnified Parties of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to Third-Party Claim and (z) does not contain an admission of liability on the foregoing the part of any Indemnified Party. The Indemnifying Party shall not settle consent to the entry of any third party claim with respect to Taxes that could adversely affect judgment which would impose any injunctive or equitable relief on the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within thirty (30) Business Days of receipt of written notice of such Third Party Claim or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Action and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense of the Indemnified Parties in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third-Party Claim, the parties hereto shall cooperate in the defense thereof in accordance with Section 11.02(c). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Third-Party Claim that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed). In the event that Purchaser seeks indemnification from Seller under this Article XI in respect of any matter which Seller may be entitled to seek full or partial indemnification from Spectrum pursuant to the Spectrum Battery Acquisition Agreement, then, without limiting Purchaser’s obligations under Section 6.11, at the request of Seller, Purchaser shall take such actions and provide such cooperation and assistance to Spectrum to the same extent that Seller is required to do as a condition of seeking indemnification of Spectrum pursuant to Article XI of the Spectrum Battery Acquisition Agreement.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable and documented out-of-pocket expenses of the Indemnified Parties); provided that the Indemnifying Party shall take reasonable precautions so as not to jeopardize any privilege reasonably available to an Indemnified Party in respect of any of its records.
(d) In the event of a Direct Claim, within thirty (30) days of delivery of a Claim Notice to the Indemnifying Party, if the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations, such dispute shall be resolved by litigation in a court of competent jurisdiction pursuant to Section 12.10.
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third third-party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, action or proceeding (each of the foregoing, a “Proceeding”) that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X VIII (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall reasonably promptly send to the Indemnifying Party a written notice specifying the nature of such claim and and, to the extent practicable, the estimated amount of all related Losses liabilities (a “Claim Notice”). The If an Indemnified Party fails to timely deliver an adequate Claim Notice to any Indemnifying Party, such Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if VIII solely (and then only only) to the extent that) that it is actually materially prejudiced by the such failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may may, upon prompt notice to the Indemnified Parties, elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel. The Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Proceeding, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Proceeding and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle any such Action Proceeding without the relevant Indemnified Parties’ prior written consent consent, unless the terms of such settlement provide for no relief other than the payment of monetary damages, which amounts will be indemnified under Section 8.1(a) or (which shall not be unreasonably withheldb), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Partyas applicable, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition subject to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldlimitations set forth in Article VIII. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or is otherwise not entitled fails to give prompt notice of its intention to do so in accordance so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with this Section 10.02respect to the Covered Matter), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel in connection with such Proceeding and assume control of the defense in connection with such ActionProceeding, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the each Indemnified Parties Party shall be reimbursed promptly by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably delayed or withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(d) After the Closing, Buyer shall cause the Company to pursue recovery under the existing insurance policies of the Company or the Company Subsidiaries (or their respective predecessors) with respect to any Losses related to the Covered Matter.
Appears in 1 contract
Samples: Stock Purchase Agreement (Level 3 Communications Inc)
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority Body institutes, threatens or asserts any Action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and to the extent practicable based on then-available information, a good faith estimate of the amount of all related Losses (a “Claim Notice”). The ; provided, however, that the failure to provide such notice shall not release the Indemnifying Party shall be relieved from any of its indemnification obligations under this Article X only if (and then only XI except to the extent that) it that the Indemnifying Party is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice. Any Claim Notices in respect of a breach of a representation or warranty must be delivered prior to the expiration of any applicable survival period specified in Section 11.1(c)(i) for such representation or warranty; provided that if, prior to such applicable date, the Indemnified Party shall have notified the Indemnifying Party in accordance with the requirements of this Section 11.2(a) of a claim for indemnification under this Article XI (whether or not formal legal action shall have been commenced based upon such claim), such claim shall continue to be subject to indemnification in accordance with this Article XI notwithstanding the passing of such applicable date. Nothing in this Agreement shall impose any time limitation on the delivery of a Claim Notice in respect of a breach or failure to perform a covenant or obligation of a Party hereunder.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the The Indemnifying Party shall not be entitled to assume the conduct and or maintain control of such settlement the defense of any Third-Party Claim and defense shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (wi) the claim for indemnification Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) investigation against the Indemnified Party is advised by or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 11.2(b), in the event of a Third-Party Claim, the Indemnifying Party may elect to assume, at its own expense, the defense of a Third-Party Claim and retain counsel chosen by it that there are one or more defenses available reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Third-Party Claim. Subject to Section 11.2(b), the Indemnified Parties may participate, at their own expense and through separate legal counsel of their choice, in the defense of any such Third-Party Claim; provided, however, that the Indemnifying Party shall (i) control the defense of the Indemnified Parties in connection with such Action and (ii) bear the reasonable fees, costs and expenses of such separate counsel if an actual or potential conflict of interest makes representation by the same counsel inappropriate. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of a Third-Party Claim to the extent that such Third-Party Claim is subject to indemnification by the Indemnifying Party under this Article XI. If the Indemnifying Party chooses to assume the defense of any Third-Party Claim, Seller or canBuyer (as the case may be) shall, and shall cause each of its Affiliates and Representatives to, reasonably cooperate (including, upon the reasonable request of the other Party, making reasonably available books, records and personnel with respect to the subject matter of such Third-Party Claim) with the Indemnifying Party in the defense of such Third-Party Claim. All costs and expenses incurred in connection with such reasonable cooperation shall be borne by the Indemnifying Party. If the Indemnifying Party has assumed the defense of any Third-Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, consent to a settlement, compromise or discharge of, or the entry of any judgment arising from, any Third-Party Claim; provided, however, that no such consent shall be required if (i) such settlement, compromise, discharge or entry of any judgment (A) does not assert involve any finding or admission of any violation of Applicable Law or admission of any wrongdoing or any violation of the rights of any Person and does not include a statement or admission of fault, culpability or failure to act by or on behalf of any Indemnified Party and (B) does not subject the Indemnified Party to any injunctive relief or other equitable remedy and does not encumber any of the assets of any Indemnified Party or result in any restriction or condition that would apply to or affect any Indemnified Party or the conduct of any Indemnified Party’s business and (yii) (A) the Indemnifying Party failed pays or causes to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement or judgment (unless otherwise provided in such settlement or judgment) and (B) such settlement, compromise, discharge or entry of judgment includes a complete and unconditional release of each Indemnified Party from any and all Liabilities in respect of such Third-Party Claim. If the Indemnifying Party has assumed the defense of a Third-Party Claim, and is failing to vigorously prosecute or defend such claim. The Indemnifying in compliance with its obligations under this Section 11.2(c), the Indemnified Party shall not settle settle, compromise or consent to the entry of any judgment with respect to such Action Third-Party Claim or admit to any liability with respect to such Third-Party Claim without the relevant Indemnified Parties’ prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, delayed or conditioned), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if If the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defend the Indemnified Party against a Third-Party Claim, then the Indemnified Parties Party shall have the right to assume control of its own defense (without in any way waiving or otherwise affecting the defense in connection with such ActionIndemnified Party’s rights to indemnification pursuant to this Agreement), and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties Party shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not to be unreasonably withheld, conditioned or delayed).
(cd) From If there shall be any conflicts between the provisions of this Section 11.2 and after Section 12.2(g) (relating to Tax contests), the delivery provisions of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party Section 12.2(g) shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, control with respect to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties)Tax contests.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hartford Financial Services Group Inc/De)
Notice of Claim; Defense. (a) If A Party who may be entitled to be indemnified and held harmless under Section 6.1 or Section 6.2 (i) any third party the “Indemnified Party”), shall promptly notify Provider or Governmental Authority institutesHLI, threatens or asserts any Action that may give rise to Losses for which a party as applicable (an the “Indemnifying Party”) may be liable for indemnification in writing of any pending or threatened claim or demand by a third party that the Indemnified Party has determined has given or could reasonably give rise to such a right under this Article X Agreement (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “Third-Party Claim”) ), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or (ii) any Person entitled demand; provided, that the failure to indemnification under this Agreement (an “Indemnified Party”) provide such notice shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to release the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved from any of its indemnification obligations under this Article X only if (and then only VI except to the extent that) it the Indemnifying Party is actually prejudiced by the failure such failure. Following delivery of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event notice of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim shall deliver to the Indemnifying Party, that promptly (and in any event within ten (10) Business Days) after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such Third-Party Claim.
(b) Following receipt of a notice of a Third-Party Claim from an Indemnified Party pursuant to Section 6.3(a), the Indemnifying Party is assuming may assume the defense against (or settlement of) and control of such Third Third-Party Claim and will indemnify by delivery of written notice to the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name within sixty (60) days after receipt of the Indemnified Party in accordance with the terms and limitations of this Article XParty’s claims notice pursuant to Section 6.3(a); provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and or maintain control of such settlement the defense of any Third-Party Claim and defense if shall pay the reasonable fees, costs and expenses of counsel retained by the Indemnified Party to the extent (wi) the claim for indemnification Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigationinvestigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, (x) in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates. The assumption of the defense by the Indemnifying Party of any Third-Party Claim shall not require the Indemnifying Party to agree to be liable for any Losses in respect of such Third-Party Claim and shall be without prejudice to any rights or defenses of the Indemnifying Party in respect of whether the Indemnified Party is advised entitled to indemnification under this Article VI for any particular Loss or Losses.
(c) The Indemnified Party may take any actions reasonably necessary to defend such Third-Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by Section 6.3(b). If the Indemnifying Party assumes the defense of any Third-Party Claim in accordance with Section 6.3(b), the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third-Party Claim with its own counsel chosen and at its own expense; provided, however, that notwithstanding the foregoing, the Indemnifying Party shall bear the reasonable fees, costs and expenses of one (1) such separate counsel if (i) the Indemnifying Party and the Indemnified Party are both named parties to the Action and the Indemnified Party shall have reasonably determined in good faith that the representation of both parties by it the same counsel would be inappropriate due to actual differing interests between them or that there are one may be defenses or more defenses counterclaims available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of that are inconsistent with those available to the Indemnified Party or (yii) the Indemnifying Party failed shall have authorized the Indemnified Party to employ separate counsel at the Indemnifying Party’s expense. If the Indemnifying Party assumes the defense of any Third-Party Claim, the Indemnifying Party shall not, for so long as it diligently conducts such defense, be liable to the Indemnified Party for legal or is failing to vigorously prosecute or defend such claimother expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than provided in this Section 6.3(c). The Indemnifying Party shall not settle any such Action without be liable for the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)reasonable fees, unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed costs and expenses of counsel employed by the Indemnified Party for any period during which Indemnifying PartyParty has not assumed or is not diligently conducting the defense of a Third-Party Claim for which the Indemnified Party is entitled to indemnification hereunder. Provider or HLI, (2) there is no finding or admission as the case may be, shall, and shall cause each of any violation of applicable law its Affiliates and (3) such settlement includes an unconditional release from all liability Representatives to, reasonably cooperate with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle in the defense of any third party claim with respect to Taxes that could adversely affect Third-Party Claim. Without limiting the Indemnified Party without prior written consent generality of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From from and after the delivery of a Claim Noticenotice of a claim for indemnification with respect to a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice such Third-Party Claim, at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties). The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, without the consent of any Indemnified Party; provided, that (A) such settlement provides only for the payment of monetary damages (and does not impose any injunctive relief or otherwise impose any conditions or restrictions on the applicable Indemnified Party or any of its Affiliates or Representatives) and does not involve any finding or admission of any violation of Law or admission of any wrongdoing or any violation of the rights of any Person and does not include a statement or admission of fault, culpability or failure to act by or on the part of any Indemnified Party or any of its Affiliates or Representatives, (B) the Indemnifying Party pays or causes to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement or judgment, and (C) the Indemnifying Party obtains, as a condition of any settlement, entry of judgment or other resolution, a complete and unconditional release of each Indemnified Party from any and all Liabilities in respect of such Third-Party Claim. If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim to which it is entitled to indemnification hereunder, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, then the Indemnified Party shall have the right but not the obligation to assume its own defense, but without in any way waiving or otherwise affecting the Indemnified Party’s rights to indemnification pursuant to this Agreement, and the Indemnifying Party shall bear all fees, costs and expenses of one such counsel engaged by the Indemnified Party for Third-Party Claims for which such Indemnified Party was entitled to indemnification hereunder.
(d) No Indemnifying Party shall have any liability under this Article VI for any Losses arising out of or in connection with any Third-Party Claim that is settled or compromised by an Indemnified Party without the prior consent of such Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
(e) If an Indemnified Party wishes to make a claim under this Article VI that does not involve a Third-Party Claim, the Indemnified Party shall give written notice to the Indemnifying Party setting forth (i) a reasonably detailed description of the claim, (ii) a good faith estimate of the amount of the claim (to the extent ascertainable) and (iii) the specific provision of this Agreement that the Indemnified Party alleges to be breached, and such notice shall be accompanied by copies of all available documentation that may be necessary or appropriate for the purposes of enabling the Indemnifying Party to be informed and to take any and all appropriate decisions and actions in respect of the matter and Loss that is the subject of the claim; provided, that the failure to provide such notice on a timely basis shall not release the Indemnifying Party from any of its obligations under this Article VI except to the extent the Indemnifying Party is actually prejudiced by such failure.
Appears in 1 contract
Samples: Transition Services Agreement (Talcott Resolution Life Insurance Co)
Notice of Claim; Defense. (a) If (i) any third third-party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, action or proceeding (each of the foregoing, a “Proceeding”) that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X VIII (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then VIII only to the extent that) that it is actually materially prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice. No Person shall be liable for any claim for indemnification under the Article VIII unless such claim arises prior to the applicable survival period and the applicable Claim Notice is delivered by the Indemnified Party to the Indemnifying Party prior to the expiration of the applicable survival period.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges reasonable fees and disbursements expenses of such counsel. The Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Proceeding, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Proceeding and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle any such Action Proceeding without the relevant Indemnified Parties’ Party’s prior written consent (which shall not be unreasonably withheld), unless (1) the sole terms of such settlement provide for no relief provided is other than the payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect fully indemnified pursuant to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldthis Article VIII. Notwithstanding the foregoing, if (x) the Indemnifying Party elects not to retain counsel and assume control of such defense defense, (y) both the Indemnifying Party and any Indemnified Party are or may be parties to or subjects of such Proceeding or conflicts of interests exist between the Indemnifying Party and such Indemnified Party or (z) the Proceeding is otherwise not entitled reasonably likely to do so in accordance with this Section 10.02establish a precedential custom or practice that is detrimental to the continuing business interests of the Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Proceeding and assume control of the defense in connection with such ActionProceeding, and the fees, charges reasonable fees and disbursements expenses of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) In the event that any third party Reinsurer Indemnified Party or Governmental Authority institutesCeding Company Indemnified Party forms an intention to assert a claim for indemnification hereunder arising from a claim or demand made, threatens or asserts an action or investigation instituted, by any Action Person not either a Party to this Agreement or an Affiliate of a Party to this Agreement that may give rise to Losses result in a Loss for which a party (an “Indemnifying Party”) indemnification may be liable for indemnification claimed under this Article X (a “Third-Third Party Claim”) or ), such party seeking indemnification (ii) any Person entitled to indemnification under this Agreement (an the “Indemnified Party”) shall, as promptly as practicable after forming such intention, give written notice (a “Claim Notice”) to the other party (the “Indemnifying Party”). Such Claim Notice shall specify in detail the facts constituting the basis for, and the amount of, the claim asserted. The failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall relieve the Indemnifying Party of its indemnification obligations to the extent such failure or other actions taken by the Indemnified Party shall actually and materially prejudice an Indemnifying Party, and then only to the extent of such prejudice; provided, however, that an Indemnifying Party shall have no obligation whatsoever to indemnify an Indemnified Party if a claim Claim Notice containing the information specified above is not received by the Indemnifying Party prior to the termination of this Agreement pursuant to Article IX.
(b) Subject to the provisions of Section 10.3(c), upon receipt of a Claim Notice, the Indemnifying Party shall have the right to assume the defense and control of Third Party Claims. In the event the Indemnifying Party exercises such right to assume the defense and control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation reasonably to participate in (but not control) the defense of Third Party Claim with its own counsel and at its own expense unless (i) the Indemnifying Party and Indemnified Party shall have mutually agreed in writing to the retention of such counsel, or (ii) the named parties to any such Third Party Claim (including any impleaded parties) include the Indemnifying Party and Indemnified Party and representation of both Parties by the same counsel would, in the opinion of counsel to such Indemnified Party, be indemnified impermissible under the applicable code of professional responsibility due to actual or potential differing interests between the Indemnifying Party and Indemnified Party, including situations in which there are one or more legal defenses available to the Indemnified Party that are different from, or additional to, those available to the Indemnifying Party, in which case the Indemnifying Party shall bear such expense. Any election by an Indemnifying Party that does to assume the defense of a Third Party Claim must be delivered by the Indemnifying Party to the Indemnified Party within thirty (30) Business Days after receipt of the Indemnified Party’s Claim Notice, and failure on the part of the Indemnifying Party to send such notice within such thirty (30) Business Day period shall be deemed an election not involve to assume the defense of such Third Party Claim. If the Indemnifying Party elects to assume the defense of a Third-Third Party Claim, then the Indemnified Party shall, and shall promptly send to cause each of its Representatives and permitted assigns to, cooperate fully with the Indemnifying Party in the defense of any such Third Party Claim, which cooperation shall include designating a written notice specifying liaison counsel to whom the nature Indemnifying Party may direct notices and other communications, using commercially reasonable efforts to make witnesses available, and providing records and documents to the extent such witnesses, records and documents are relevant to the Third Party Claim.
(c) The Indemnified Party shall not consent to a settlement of, or the entry of such claim and any judgment arising from, any Third Party Claim without the amount consent of all related Losses (a “Claim Notice”)the Indemnifying Party. The Indemnifying Party shall be relieved authorized to consent to a settlement of, or the entry of its indemnification obligations under this Article X only if (and then only any judgment arising from, any Third Party Claim as to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, which the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming assumed the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article XSection 10.3(b), without the consent of any Indemnified Party, but only to the extent that such settlement or entry of judgment:
(i) provides solely for the payment of money; providedand
(ii) provides a complete release of, or dismissal with prejudice of claims against, any Indemnified Party potentially affected by such Third Party Claim from all matters that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel were asserted in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)claims.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Samples: Reinsurance Agreement (Farmers Annuity Separate Account A)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly (and in the case of clause (i) in any event within ten (10) Business Days after receipt by the Indemnified Party of notice of the Third-Party Claim) send to the Indemnifying Party a written notice specifying (to the nature extent known) in reasonable details the nature, facts and circumstances of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts shall be relieved not affect the rights of its indemnification obligations under this Article X only if (and then only the indemnified parties except to the extent that) it is that such failure actually prejudiced by prejudices the failure of the Indemnified Parties to provide a timely and adequate Claim NoticeIndemnifying Party.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) counsel. Should the Indemnifying Party notifies so elect to control the defense of a Third-Party Claim, the Indemnifying Party shall allow the Indemnified PartyParties a reasonable opportunity to participate, within thirty (30) days after at their own expense and through legal counsel of their choice, in the defense of such Third-Party Claim. The Indemnifying Party shall keep the Indemnified Party has given notice advised of the status of such Third-Party Claim and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto. The Indemnified Party shall deliver to the Indemnifying Party, that promptly after the Indemnifying Party is assuming the defense against Indemnified Party’s receipt thereof, copies of all notices and documents (or settlement ofincluding court papers) such Third Party Claim and will indemnify received by the Indemnified Party against such Third relating to the Third-Party Claim Claim. Notwithstanding anything to the contrary in its name orthis Agreement, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and or continue control of such settlement and the defense of any Third-Party Claim if (wA) the claim for indemnification such Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation (B) such Third-Party Claim seeks an injunction or investigationequitable relief against any Indemnified Party (other than in cases where the primary remedy being sought by such third party or Governmental Authority is monetary damages), (xC) such Third Party Claim has or would reasonably be expected to result in Losses (excluding, for the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to avoidance of doubt, for the Indemnified Party purpose of this clause (C), any Tax excess) in excess of the maximum amount for which the Indemnifying Party has not or cannot assert on behalf of is potentially liable with respect to such Third Party Claim, (D) the Indemnified Party’s counsel advises that a conflict of interest exists or would reasonably be expected to arise in the event the Indemnifying Party elects to control or defend any Third-Party Claim, (yE) the Indemnifying Party has failed or is failing to vigorously prosecute defend in good faith such Third Party Claim, (F) such Third-Party Claim arises out of any Release of any Hazardous Material or defend noncompliance with any Environmental Law at any Real Property or (G) such claimThird Party Claim arises out of or relates to any Intellectual Property constituting a Transferred Asset. The If, in the reasonable opinion of the Indemnifying Party’s outside counsel, the equitable relief or other relief portion of the Third-Party shall not settle any such Action Claim referenced in clause (B) above can be separated from the claim for money damages without prejudicial effect (other than a de minimis prejudicial effect) on the relevant Indemnified Parties’ non-monetary claims, then, with the prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), unless the Indemnifying Party shall be entitled to assume the defense of the portion of such claim relating to money damages. The Indemnifying Party shall have the right to settle, compromise or discharge a Third-Party Claim either (1I) with the sole prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) or (II) without any Indemnified Party’s consent if such settlement, compromise or discharge (x) provides for no relief provided is other than the payment of monetary damages that and such monetary damages are entirely paid or reimbursed in full by the Indemnifying Party, (2y) there is no finding or admission includes as an unconditional term thereof the giving by the Person(s) asserting such Third-Party Claim to all Indemnified Parties of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to Third-Party Claim and (z) does not contain an admission of liability on the foregoing the part of any Indemnified Party. The Indemnifying Party shall not settle consent to the entry of any third party claim with respect to Taxes that could adversely affect judgment which would impose any injunctive or equitable relief on the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within thirty (30) Business Days of receipt of written notice of such Third Party Claim or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Action and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense of the Indemnified Parties in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third-Party Claim, the parties hereto shall cooperate in the defense thereof in accordance with Section 11.02(c). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Third-Party Claim that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable and documented out-of-pocket expenses of the Indemnified Parties); provided that the Indemnifying Party shall take reasonable precautions so as not to jeopardize any privilege reasonably available to an Indemnified Party in respect of any of its records.
(d) In the event of a Direct Claim, within thirty (30) days of delivery of a Claim Notice to the Indemnifying Party, if the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations, such dispute shall be resolved by litigation in a court of competent jurisdiction pursuant to Section 12.10.
Appears in 1 contract
Notice of Claim; Defense. Purchaser or the Sellers, as the case may be (athe “Indemnified Party”), shall give the other party (the “Indemnifying Party”) If (i) prompt notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X IX, together with the estimated amount of such claim, and the Indemnifying Party shall have the right to assume the defense (a “Third-at the Indemnifying Party’s expense) of any such claim through counsel of the Indemnifying Party’s own choosing by so notifying the Indemnified Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “within 30 days of the first receipt by the Indemnifying Party of such notice from the Indemnified Party”) ; provided, however, that any such counsel shall have be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a claim conflict with respect to any significant issue between any Purchaser Indemnified Person or any Seller Indemnified Person, as the case may be, and the Indemnifying Party exists in respect of such third-party claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be indemnified by an retained in order to eliminate such conflict. If the Indemnifying Party that does not involve chooses to defend or prosecute a Thirdthird-Party Claimparty claim, then the Indemnified Party shall promptly send to cooperate in the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party defense or prosecution thereof, which cooperation shall be relieved of its indemnification obligations under this Article X only if (and then only include, to the extent that) it is actually prejudiced reasonably requested by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party ClaimIndemnifying Party, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action retention, and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Targeted Businesses available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any third-party claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such third-party claim that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim may recommend and will indemnify that, by its terms, discharges the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel Affiliates from the full amount of liability in connection with such Action and (B) third-party claim; provided, however, that, the Indemnifying Party shall not be entitled to assume the conduct consent to, and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it shall not be required to agree to, the entry of any judgment or enter into any settlement that there are one (i) provides for injunctive or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of other non-monetary relief affecting the Indemnified Party or (y) any Affiliate of the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2ii) there is no finding or admission of any violation of applicable law and (3) such settlement includes does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant that is the Indemnifying Party and its counselsubject of such third-party claim, experts and representatives full access, during normal business hours, to or (iii) contains any admission of wrongdoing by the books, records, personnel and properties Targeted Businesses or any of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties)their employees.
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority institutes, threatens or Body institutes asserts any Action that may give rise to Losses for which a party Party (an “"Indemnifying Party”") may be liable for indemnification under this Article X XIII (a “"Third-Party Claim”") or (ii) any Person that may be entitled to indemnification under this Agreement (an “"Indemnified Party”") shall have desires to make a claim not involving a Third-Party Claim to be indemnified by an Indemnifying Party that does not involve a Third-Party ClaimParty, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses to the extent they are ascertainable (a “"Claim Notice”"). The Indemnifying Party shall not be relieved from any of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the XIII as a result of a failure of the Indemnified Parties to provide a timely and adequate Claim NoticeNotice except to the extent that it is prejudiced by such failure.
(b) In The Indemnifying Party may, by notice delivered within twenty (20) Business Days of the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnified Party may take any actions reasonably necessary to defend any Third-Party Claim prior to the time that it receives notice from the Indemnifying Party as contemplated by the preceding sentence. The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 13.03(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 13.03(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action. To the extent such action can be taken in a way that does not unreasonably jeopardize the attorney-client privilege: (i) the Indemnified Party's right to participate in the defense of any Action shall include the right to attend all significant internal meetings, all meetingswith representatives of plaintiffs, hearings and the like; and (Bii) counsel for a Indemnified Party also shall be given a reasonable opportunity to comment upon all memoranda of law, pleadings and briefs and other documents relating to the Third-Party Claim, and the Indemnifying Party and its counsel shall not be entitled give reasonable consideration to assume the conduct and control comments of such settlement and defense if (w) the claim counsel for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimParty. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ ' prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Partydamages, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects does not to promptly retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall may retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall such consent not to be unreasonably withheld, delayed or conditioned).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within twenty (20) Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article XIII.
Appears in 1 contract
Samples: Administrative Services Agreement (Hartford Life & Annuity Insurance Co Sep Account Vl I)
Notice of Claim; Defense. Purchaser or the Sellers, as the case may be (athe "Indemnified Party"), shall give the other party (the "Indemnifying Party") If (i) prompt notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X IX, together with the estimated amount of such claim, and the Indemnifying Party shall have the right to assume the defense (a “Third-at the Indemnifying Party's expense) of any such claim through counsel of the Indemnifying Party's own choosing by so notifying the Indemnified Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “within 30 days of the first receipt by the Indemnifying Party of such notice from the Indemnified Party”) ; provided, however, that any such counsel shall have be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a claim conflict with respect to any significant issue between any Purchaser Indemnified Person or any Seller Indemnified Person, as the case may be, and the Indemnifying Party exists in respect of such third-party claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be indemnified by an retained in order to eliminate such conflict. If the Indemnifying Party that does not involve chooses to defend or prosecute a Thirdthird-Party Claimparty claim, then the Indemnified Party shall promptly send to cooperate in the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party defense or prosecution thereof, which cooperation shall be relieved of its indemnification obligations under this Article X only if (and then only include, to the extent that) it is actually prejudiced reasonably requested by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party ClaimIndemnifying Party, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action retention, and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Targeted Businesses available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any third-party claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such third-party claim that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim may recommend and will indemnify that, by its terms, discharges the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel Affiliates from the full amount of liability in connection with such Action and (B) third-party claim; provided, however, that, the Indemnifying Party shall not be entitled to assume the conduct consent to, and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it shall not be required to agree to, the entry of any judgment or enter into any settlement that there are one (i) provides for injunctive or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of other non-monetary relief affecting the Indemnified Party or (y) any Affiliate of the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2ii) there is no finding or admission of any violation of applicable law and (3) such settlement includes does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant that is the Indemnifying Party and its counselsubject of such third-party claim, experts and representatives full access, during normal business hours, to or (iii) contains any admission of wrongdoing by the books, records, personnel and properties Targeted Businesses or any of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties)their employees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Apollo Investment Fund Iv Lp)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X XII (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying (to the extent known) the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts shall be relieved not affect the rights of its indemnification obligations under this Article X only if (and then only the indemnified parties except to the extent that) it is that such failure actually prejudiced by prejudices the failure of the Indemnified Parties to provide a timely and adequate Claim NoticeIndemnifying Party.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its Party’s counsel in connection with such Action and (B) Action. Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party shall not be entitled to assume the conduct and or continue control of such settlement and the defense of any Third-Party Claim if (wA) the claim for indemnification such Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation (B) such Third-Party Claim seeks an injunction or investigationequitable relief against any Indemnified Party (other than in cases where the primary remedy being sought by such third party or Governmental Authority is monetary damages), (xC) such Third-Party Claim has or would reasonably be expected to result in Losses (excluding, for the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to avoidance of doubt, for the Indemnified Party which purposes of this clause (C), any Tax excess) in excess of the Cap, (D) the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute defend in good faith such Third-Party Claim, or defend (E) such claimThird-Party Claim arises out of any Release or noncompliance with any Environmental Law at any Real Property. The Indemnifying Party shall not settle any such Action without have the relevant Indemnified Parties’ right to settle, compromise or discharge a Third-Party Claim either (I) with the prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld), unless conditioned or delayed) or (1II) without any Indemnified Party’s consent if such settlement, compromise or discharge (x) provides for no relief other than the sole relief provided is payment of monetary damages that and such monetary damages are entirely paid or reimbursed in full by the Indemnifying Party, (2y) there is no finding or admission includes as an unconditional term thereof the giving by the Person(s) asserting such Third-Party Claim to all Indemnified Parties of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to Third-Party Claim and (z) does not contain an admission of liability on the foregoing the part of any Indemnified Party. The Indemnifying Party shall not settle consent to the entry of any third party claim with respect to Taxes that could adversely affect judgment which would impose any injunctive or equitable relief on the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within a reasonable period of time or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Action and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense of the Indemnified Parties in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third-Party Claim, the parties hereto shall cooperate in the defense thereof in accordance with Section 12.02(c). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable and documented out-of-pocket expenses of the Indemnified Parties); provided that the Indemnifying Party shall take reasonable precautions so as not to jeopardize any privilege reasonably available to an Indemnified Party in respect of any of its records.
(d) In the event of a Direct Claim, within thirty (30) calendar days of delivery of a Claim Notice to the Indemnifying Party, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within such 30-day period, such dispute shall be resolved by litigation in a court of competent jurisdiction pursuant to Section 13.10.
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third third-party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, action or proceeding (each of the foregoing, a “Proceeding”) that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X VIII (a “Third-Party party Claim”) or (ii) any Person entitled to indemnification under this Agreement (except in connection with any matter related to Taxes or except as covered by Section 2.4(c) of the Registration Procedures) (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses Liabilities (a “Claim Notice”). The Indemnifying Party shall not be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced VIII by the failure of the Indemnified Parties to provide a timely and adequate Claim NoticeNotice except to the extent that it is actually prejudiced by such delay or failure.
(b) In the event of a Third-Party party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel. The Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Proceeding, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Proceeding and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle any such Action Proceeding without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole terms of such settlement provide for no relief provided is other than the payment of monetary damages that are entirely paid or reimbursed in full by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Proceeding and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall assume control of retain counsel reasonably acceptable to the defense Indemnifying Party in connection with such ActionProceeding, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Samples: Merger Agreement (Unionbancal Corp)
Notice of Claim; Defense. (aUntil the expiration of the indemnification period as set forth in Section 7.1(c) If (i) above, each Indemnified Party shall give the Indemnifying Party prompt notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X (a “Third-7, together with the estimated amount of such claim, and the Indemnifying Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a the right to assume the defense (at Indemnifying Party’s sole expense) of any such claim to be indemnified through counsel of the Indemnifying Party’s own choosing by an Indemnifying Party that does not involve a Third-Party Claim, then so notifying the Indemnified Party shall promptly send to within 30 days of the first receipt by the Indemnifying Party a written notice specifying the nature of such claim notice from the Indemnified Party; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Indemnified Party and any Indemnifying Party exists in respect of such third-party claim, the amount Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict, but not more than one firm in any jurisdiction representing all related Losses (a “Claim Notice”)Indemnified Parties. The Indemnifying Party shall be relieved solely liable for the fees and expenses of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced one counsel employed by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party period during which the Indemnifying Party has not or cannot assert on behalf assumed the defense of any such third-party claim (other than during any period in which the Indemnified Party or (y) will have failed to give notice of the third-party claim as provided above). If the Indemnifying Party failed or is failing to vigorously prosecute or defend assumes such claim. The Indemnifying defense, the Indemnified Party shall not settle any such Action without have the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)right to reasonably participate in the defense thereof and to employ counsel, unless (1) at its own expense, separate from the sole relief provided is monetary damages that are entirely paid or reimbursed counsel employed by the Indemnifying Party, (2) there is no finding it being understood that the Indemnifying Party shall control such defense. If Indemnifying Party chooses to defend or admission prosecute a third-party claim, the Indemnified Party shall reasonably cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Party available on a mutually convenient basis to provide additional information and explanation of any violation materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any third-party claim, the Indemnified Party shall agree to any settlement, compromise or discharge of applicable law such third-party claim that the Indemnifying Party may reasonably recommend and that, by its terms, discharges the Indemnified Party and its Affiliates from the full amount of liability in connection with such third-party claim; provided, however, that, without the consent of the Indemnified Party, the Indemnifying Party shall not consent to, and the Indemnified Party shall not be required to agree to, the entry of any judgment or enter into any settlement that (3i) such settlement includes provides for injunctive or other non-monetary relief affecting the Indemnified Party or any of its Affiliates or (ii) does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent each of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)the subject of such third-party claim.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Samples: Share Purchase Agreement (Gulf West Security Network, Inc.)
Notice of Claim; Defense. (a) If (i) Buyer receives notice of the assertion or commencement of any third third-party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification claim indemnifiable under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under Section 11.1 of this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-"Medical Malpractice Third Party Claim") against such Buyer with respect to which Seller is obligated to provide indemnification under Article XI of this Agreement, then the Indemnified Party shall promptly send to the Indemnifying Party a Buyer will give Seller reasonably prompt written notice specifying the nature thereof, but in any event not later than 10 calendar days after receipt of such claim and notice of such Medical Malpractice Third Party Claim. Such notice by Buyer will describe the amount Medical Malpractice Third Party Claim in reasonable detail, will include copies of all related Losses material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Medical Malpractice Loss that has been or may be sustained by Buyer. Seller will have the right to participate in, or, by giving written notice to Buyer, to assume, the defense of any Medical Malpractice Third Party Claim at Seller's own expense and by Seller's own counsel (a “Claim Notice”). The Indemnifying Party which counsel, prior to reaching the Medical Malpractice Threshold, shall be relieved of its indemnification obligations under this Article X only if (reasonably satisfactory to Buyer), and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim NoticeBuyer will cooperate in good faith in such defense.
(b) In the event If, within twenty calendar days after giving notice of a Third-Medical Malpractice Third Party Claim to Seller pursuant to Section 11.2(a), Buyer receives written notice from Seller that Seller has elected to assume the defense of such Medical Malpractice Third Party Claim as provided in the last sentence of Section 11.2(a), Seller will not be liable for any legal expenses subsequently incurred by Buyer in connection with the defense thereof; provided, however, that prior to reaching the Medical Malpractice Threshold, Buyer shall be entitled to engage separate, outside legal counsel, the reasonable fees and expenses of whom shall be included in Medical Malpractice Losses and subject to Section 11.1(a). If Seller chooses to defend or prosecute any Medical Malpractice Third Party Claim, Buyer shall agree to any settlement, compromise or discharge of such Medical Malpractice Third Party Claim that Seller may recommend and that, by its terms, discharges Buyer from the Indemnifying Party may elect to retain counsel full amount of its choice to represent such Indemnified Parties liability in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Medical Malpractice Third Party Claim and will indemnify (taking into account the Indemnified Party against such Third Party Claim indemnification provided in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (AXI) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with without any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability or fault with respect to such claimany Healthcare Fraud Laws. Except as set forth in the preceding sentence, andnone of Seller, in addition to Buyer, any of their respective Affiliates or the foregoing Company may settle or otherwise dispose of any claim for which Seller or Buyer may have a liability under this Article XI without the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Partythe other party, which consent shall not be unreasonably withheld; unless the party wishing to settle fully indemnifies the other party in writing with respect to such liability in a manner reasonably satisfactory to such other party. Notwithstanding No indemnified party shall take any action the foregoing, if the Indemnifying Party elects not purpose of which is to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of prejudice the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.
(c) From A failure to give timely notice or to include any specified information in any notice as provided in Sections 11.2(a) or 11.2(b) will not affect the rights or obligations of any party hereunder except and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party only to the extent reasonably related that, as a result of such failure, any party which was entitled to the Claim Notice at no cost receive such notice was deprived of its right to the Indemnifying Party (other than for reasonable out-of-pocket expenses recover any payment under its applicable insurance coverage or was otherwise prejudiced as a result of the Indemnified Parties)such failure.
Appears in 1 contract
Samples: Stock Purchase Agreement (Edwards Lifesciences Corp)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority Entity institutes, threatens or asserts any Action that may reasonably give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X VII (a “Third-Third Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall will have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Third Party Claim (a “Direct Claim”), then the Indemnified Party shall will promptly send to the Indemnifying Party a written notice specifying (to the extent known) the nature of such claim and the amount of all related Losses (to the extent known) (a “Claim Notice”). The Indemnifying ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts will not affect the rights of the Indemnified Party shall be relieved of its indemnification obligations under this Article X only if (and then only except to the extent thatthat such failure actually prejudices the Indemnifying Party. Each Claim Notice shall (i)(A) it is actually prejudiced by specify in reasonable detail all relevant facts, conditions and events, and (B) identify the failure specific provisions of this Agreement which give rise to such indemnification right; and (ii) include a good-faith estimate of the amount of Losses for which the Indemnified Parties to provide a timely and adequate Claim NoticeParty is seeking indemnification from the Indemnifying Party.
(b) In the event of a Third-Third Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and shall will pay the fees, charges and disbursements of such counsel so long as (i) counsel. Should the Indemnifying Party notifies so elect to assume the defense of a Third Party Claim, the Indemnified PartyParties may participate, within thirty (30) days after the Indemnified Party has given notice at their own expense and through legal counsel of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessarytheir choice, in the name of the Indemnified Party in accordance with the terms and limitations of this Article Xany such Action; provided, that (Ai) subject to the preceding sentence, the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Action, and (ii) the Indemnified Parties and their counsel shall will cooperate with the Indemnifying Party and its Party’s counsel in connection with such Action and Action. The Indemnifying Party will have the right to settle, compromise or discharge a Third Party Claim either (A) subject to the prior written consent of the applicable Indemnified Party, such consent to be given in its sole discretion, not to be unreasonably withheld, conditioned or delayed, or (B) without any Indemnified Party’s consent if such settlement, compromise or discharge provides for no relief other than the payment of monetary damages and such monetary damages are paid in full by the Indemnifying Party and requires no admission of Liability by any Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and the defense of any Third Party Claim if (w1) the claim for indemnification relates to such Third Party Claim may reasonably result in injunctions or arises other equitable remedies in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf respect of the Indemnified Party or its business, (y2) both the Indemnifying Party and any Indemnified Party are parties to or subjects of such Third Party Claim (including any impleaded parties) and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, (3) such Third Party Claim may reasonably result in criminal proceedings in respect of the Indemnified Party or its business, (4) would reasonably be expected to result in a Material Adverse Effect on the business or financial condition of the Indemnified Party after the Closing, (5) upon petition by the Indemnified Party, if an appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Third Party Claim, in which event the Indemnified Party (at the Indemnifying Party Party’s cost and expense) shall not settle any such Action without assume the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by defense with counsel reasonably acceptable to the Indemnifying Party, or (2) there is no finding or admission of any violation of applicable law and (36) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Third Party shall not settle any third party claim Claim is with respect to Taxes that could adversely affect related to the Indemnified Party without prior written consent of such Acquired Companies for periods beginning after the Closing Date or (7) if Purchaser is the Indemnified Party, which consent shall not such Third Party Claim may reasonably be unreasonably withheldexpected to result in Losses in excess of two hundred percent (200%) of the amount Purchaser would be entitled to receive indemnification from Seller pursuant to this Article VII. Notwithstanding the foregoing, if If the Indemnifying Party (x) elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within twenty (20) days of receiving a Claim Notice or (y) pursuant to the terms of the foregoing sentence, is otherwise not entitled allowed to do so in accordance with this Section 10.02control the defense of such Third Party Claim, then the Indemnified Parties shall will retain counsel reasonably acceptable to the Indemnifying Party in connection with such Third Party Claim and assume control of the defense of the Indemnified Parties in connection with such ActionThird Party Claim, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall will be reimbursed payable by the Indemnifying PartyParties. Under no circumstances will Whether the Indemnifying Party have any liability in connection with any settlement or the Indemnified Party controls the defense of any Action that is entered into without its prior written consent (which shall not be unreasonably withheldThird Party Claim, the parties hereto will cooperate in the defense thereof in accordance with Section 7.3(c).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant will, at the Indemnifying Party’s expense, afford the Indemnifying Party and its employees, counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related necessary to investigate the Claim Notice at Notice. Notwithstanding the foregoing, no cost Indemnified Party will have any obligation to make available to the Indemnifying Party any information if making such information available would (i) jeopardize any attorney-client privilege, or (ii) contravene any applicable Law, fiduciary duty or binding agreement (including any confidentiality agreement to which the Indemnified Party is a party) (it being understood that Indemnified Party will cooperate in any reasonable efforts and requests for waivers or other than for reasonable outmechanisms that would enable otherwise required disclosure to the Indemnifying Party to occur without contravening such Law, duty or agreement or jeopardizing any attorney-of-pocket expenses client privilege).
(d) In the event of a Direct Claim, within thirty (30) calendar days of delivery of a Claim Notice to the Indemnifying Party, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within such thirty (30) day period, such dispute will be resolved in accordance with to Section 9.4. In the event of a Direct Claim made by a Purchaser Indemnitee against Seller, if the Purchaser Indemnitee and Seller reach an agreement to resolve such dispute, a memorandum setting forth such agreement will be prepared and signed by all applicable parties. In the event a dispute between a Purchaser Indemnitee and Seller results in arbitration pursuant to Section 9.4, the decision of the Indemnified Parties)arbitrators with respect to such dispute will be final, binding and conclusive upon the parties thereto.
Appears in 1 contract
Samples: Purchase Agreement (Nn Inc)
Notice of Claim; Defense. (a) If (i) Each Indemnified Party shall give the Indemnifying Party prompt notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X (a “Third-6, together with the estimated amount of such claim, and the Indemnifying Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a the right to assume the defense (at Indemnifying Party’s sole expense) of any such claim to be indemnified through counsel of the Indemnifying Party’s own choosing by an Indemnifying Party that does not involve a Third-Party Claim, then so notifying the Indemnified Party shall promptly send to within 30 days of the first receipt by the Indemnifying Party a written notice specifying the nature of such claim notice from the Indemnified Party; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Indemnified Party and any Indemnifying Party exists in respect of such third-party claim, the amount Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict, but not more than one firm in any jurisdiction representing all related Losses (a “Claim Notice”)Indemnified Parties. The Indemnifying Party shall be relieved solely liable for the fees and expenses of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced counsel employed by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party period during which the Indemnifying Party has not assumed the defense of any such third-party claim (other than during any period in which the Indemnified Party will have failed to give notice of the third-party claim as provided above). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If Indemnifying Party chooses to defend or canprosecute a third-party claim, the Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Party available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. The Indemnified Party shall agree to any settlement, compromise or discharge of such third-party claim that the Indemnifying Party may recommend and that, by its terms, discharges the Indemnified Party from the full amount of liability in connection with such third-party claim; provided, however, that, without the consent of the Indemnified Party, the Indemnifying Party shall not assert on behalf consent to, and the Indemnified Party shall not be required to agree to, the entry of any judgment or enter into any settlement that (i) provides for injunctive or other non-monetary relief affecting the Indemnified Party or (yii) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall does not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect each the Indemnified Party without prior written consent Person that is the subject of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)third-party claim.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Samples: Purchase Agreement (NutriBand Inc.)
Notice of Claim; Defense. (a) If (i) An Indemnified Party shall give the applicable Indemnifying Party prompt written notice of any third party or Governmental Authority institutes, threatens or asserts any Action Third-Party Claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party ClaimX, then the Indemnified Party shall promptly send to and the Indemnifying Party a shall have the right to assume the defense (at the Indemnifying Party’s expense) of any such claim through counsel of the Indemnifying Party’s own choosing by so notifying such Indemnified Party within 30 days of the first receipt by the Indemnifying Party of such written notice specifying from such Indemnified Party. Failure to give such written notice shall affect the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by of actual prejudice. If, under applicable standards of professional conduct and in the failure good faith judgment of counsel to both the Indemnified Parties Party and the Indemnifying Party, a conflict with respect to provide a timely any significant issue between any Indemnified Party and adequate Claim Notice.
(b) In the event Indemnifying Party exists in respect of a such Third-Party Claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may elect be required to retain be retained in order to resolve such conflict. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend or prosecute any Third-Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that, by its choice to represent such terms, forever discharges and releases the Indemnified Parties Party and its Affiliates from the full amount of liability in connection with such Action and shall pay Third Party Claim; provided, however, that, without the fees, charges and disbursements consent of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct consent to, and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it shall not be required to agree to, the entry of any judgment or enter into any settlement that there are one (i) provides for injunctive or more defenses available to other non-monetary relief affecting the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf any Affiliate of the Indemnified Party or (yii) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall does not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes include as an unconditional term thereof the giving of a release and discharge from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to each Indemnified Party that is the foregoing the Indemnifying subject of such Third Party Claim. The Indemnified Party shall not settle agree to any third party claim with respect to Taxes that could adversely affect settlement of, or entry of any judgment arising from, any Third-Party Claim without the Indemnified Party without prior written consent of such Indemnified the Indemnifying Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense withheld or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)delayed.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority institutes, threatens or Body institutes asserts any Action that may give rise to Losses for which a party Party (an “"Indemnifying Party”") may be liable for indemnification under this Article X XII (a “"Third-Party Claim”") or (ii) any Person that may be entitled to indemnification under this Agreement (an “"Indemnified Party”") shall have desires to make a claim not involving a Third-Party Claim to be indemnified by an Indemnifying Party that does not involve a Third-Party ClaimParty, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses to the extent they are ascertainable (a “"Claim Notice”"). The Indemnifying Party shall not be relieved from any of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the XII as a result of a failure of the Indemnified Parties to provide a timely and adequate Claim NoticeNotice except to the extent that it is prejudiced by such failure.
(b) In The Indemnifying Party may, by notice delivered within twenty (20) Business Days of the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnified Party may take any actions reasonably necessary to defend any Third-Party Claim prior to the time that it receives notice from the Indemnifying Party as contemplated by the preceding sentence. The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 12.03(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 12.03(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action. To the extent such action can be taken in a way that does not unreasonably jeopardize the attorney-client privilege: (i) the Indemnified Party's right to participate in the defense of any Action shall include the right to attend all significant internal meetings, all meetings with representatives of plaintiffs, hearings and the like; and (Bii) counsel for a Indemnified Party also shall be given a reasonable opportunity to comment upon all memoranda of law, pleadings and briefs and other documents relating to the Third-Party Claim, and the Indemnifying Party and its counsel shall not be entitled give reasonable consideration to assume the conduct and control comments of such settlement and defense if (w) the claim counsel for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimParty. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ ' prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Partydamages, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects does not to promptly retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall may retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall such consent not to be unreasonably withheld, delayed or conditioned).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within twenty (20) Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article XII.
Appears in 1 contract
Samples: Administrative Services Agreement (Hartford Life Insurance Co Separate Account Vl Ii)
Notice of Claim; Defense. (a) If Each Purchaser Indemnified Person shall give Seller prompt notice of any third-party claim (iother than claims arising out of any pending or threatened audit, notice of deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim which could affect the liability for Taxes of Seller) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for any indemnification obligation under this Article VIII, together with the estimated amount of such claim, if reasonably ascertainable, (provided that failure to deliver such notice shall not release Seller from any of its obligations hereunder except to the extent Seller is materially prejudiced by such failure), together with a description of the facts and circumstances on which a party such claim is based. Seller shall have the right to assume the defense (an “Indemnifying Party”at Seller's expense) may of any such claim through counsel of Seller's own choosing by so notifying such Purchaser Indemnified Person within 30 days of the receipt by Seller of such notice from such Purchaser Indemnified Person; provided, -------- however, that any such counsel shall be reasonably satisfactory to such ------- Purchaser Indemnified Person. Seller shall be liable for indemnification under this Article X the fees and expenses of counsel employed by such Purchaser Indemnified Person for any period during which Seller has not assumed the defense of any such third-party claim (a “Thirdother than during any period in which Purchaser will have failed to give notice of the third-Party Claim”) or (ii) any party claim as provided above). If Seller assumes such defense through counsel of its own choosing, such Purchaser Indemnified Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. If Seller chooses to defend or prosecute a claim to be indemnified by an Indemnifying Party that does not involve a Thirdthird-Party Claimparty claim, then Purchaser shall cooperate in the Indemnified Party defense or prosecution thereof, which cooperation shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only include, to the extent that) it is actually prejudiced reasonably requested by Seller, the failure retention and the provision to Seller of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Parties Company reasonably available on a mutually convenient basis to provide a timely additional information and adequate Claim Notice.
(b) In explanation of any materials provided hereunder. If Seller chooses to defend or prosecute any third-party claim, Purchaser shall agree to any settlement, compromise or discharge of such third-party claim that Seller may recommend and that by its terms, discharges, Purchaser from the event full amount of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties liability in connection with such Action and shall pay the feesthird party claim, charges and disbursements of such counsel so long as the only remedy provided in such settlement compromise or discharge is payment of monetary damages for which the Purchaser is indemnified by the Seller. None of Purchaser, any of its Affiliates or the Company may settle or otherwise dispose of any claim for which Seller may have a liability under this Agreement without the prior written consent of Seller, which consent will not be unreasonably withheld or delayed. Seller shall not be liable under this Section 8.2(a) for any settlement, compromise or discharge effected without its consent in respect of any claim for which indemnity may be sought hereunder. No indemnified party shall take any action the purpose of which is to prejudice the defense of any claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.
(i) Each party hereto shall notify the Indemnifying Party notifies chief tax officer of the Indemnified Party, other party in writing within thirty (30) 15 days after the Indemnified Party has given following receipt by such party of written notice of any pending or threatened audits, notice of deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim which could affect the Third-Party Claim liability for Taxes of such other party. If the party required to give such notice fails to give such notice to the Indemnifying Partyother party promptly, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Claim if and to the extent that such failure to give notice materially and adversely affects the other party's right to participate in or defend the Tax Claim.
(ii) Seller shall have the sole right to represent the Company's interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of its choice at its expense. In the case of a Straddle Period, Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the portion of such Straddle Period deemed to end on or before the Closing Date and, with the written consent of Purchaser, at Seller's sole expense, may assume the conduct and control of such settlement and defense if (w) Tax Claim. None of Purchaser, any of its Affiliates or the claim Company may settle or otherwise dispose of any Tax Claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action Seller may have a liability under this Agreement without the relevant Indemnified Parties’ prior written consent (of Seller, which shall consent may not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third third-party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, action or proceeding (each of the foregoing, a “Proceeding“) that may give rise to Losses for which a party (an “Indemnifying Party”“) may be liable for indemnification under this Article X IX (a “Third-Party Claim”“) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”“) shall have actual knowledge of a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying (to the extent such information is reasonable available) the nature of such claim and and, if available the estimated amount of all related Losses Liabilities, which estimate shall be subject to change (a “Claim Notice”“). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only IX to the extent that) that it is actually materially prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice. If a Claim Notice has been given prior to the expiration of the applicable representations and warranties, then the relevant representation and warranties shall survive as to such claim until such claim has been finally resolved.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel. The Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Proceeding, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim may elect to the Indemnifying Party, that the Indemnifying Party is assuming control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Proceeding and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle consent to, or enter into, any compromise or settlement of (which compromise or settlement (i) commits the Indemnified Party to take, or to forbear to take, any action or (ii) does not provide for a full and complete written release by such third party of the Indemnified Party), or consent to the entry of any judgment that does not relate solely to monetary damages that the Indemnifying Party is fully liable to the Indemnified Party for hereunder arising from, any such Action claim or Legal Proceeding by a third party without the relevant Indemnified Parties’ Party’s prior written consent (consent, which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid conditioned or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withhelddelayed. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Proceeding and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Proceeding and assume control of the defense in connection with such ActionProceeding, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, the Parties acknowledge that Seller shall control the defense of the Retained Liabilities.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall (i) reasonably cooperate with the Indemnifying Party in connection with the defense of any Third-Party Claim and (ii) grant the Indemnifying Party and its counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel (including as witnesses or deponents at trial and during the discovery process) and properties of the Indemnified Party to the extent reasonably related to the Claim Notice Notice, in each case clause (i) and (ii) above, at no cost to the Indemnifying Party (other than for reasonable out-of-out of pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If A DCC Indemnified Person or a Globe Indemnified Person that desires to seek indemnification under any part of this ARTICLE IX (ieach, an “Indemnified Person”) shall give to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prompt notice of any third party Indemnified Person or Governmental Authority institutes, threatens or asserts any Action Third Party claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party ClaimARTICLE IX, then together with the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature estimated amount of such claim and the amount of all related Losses (a “Claim Notice”if then estimable). The Indemnifying Party ; provided that notice shall be relieved deemed to have been given in accordance with the foregoing requirement on the date hereof without any further action by a DCC Indemnified Person or Globe Indemnified Person (as applicable) with respect to the matters set forth on Section 9.3(a) of the Disclosure Letter; provided further the foregoing shall not be deemed a waiver by Globe of any of its rights under this Agreement. Failure to give such notice (including, for the sake of clarity, by failing to list such item on Schedule 9.3(a) of the Disclosure Letter) shall not affect the indemnification obligations under this Article X only if (hereunder in the absence of actual and then material prejudice and in such case, only to the extent thatof such prejudice. To the extent that any item listed on Schedule 9.3(a) it is actually prejudiced by the failure of the Disclosure Letter has not yet resulted in a formal claim or complaint by a Governmental Authority or Third Party complaint, after the date hereof, the DCC Indemnified Parties Persons shall use their reasonable best efforts to promptly provide notification of such formal claim or complaint received by such party; provided that any failure to provide a timely such notification shall not affect any indemnification obligations hereunder in the absence of actual and adequate Claim Noticematerial prejudice and in such case, only to the extent of such prejudice.
(b) The Indemnitor shall have the right to assume the defense (at its expense) of any such claim through counsel of such Indemnitor’s own choosing by so notifying the Indemnified Persons within fifteen (15) Business Days of the first receipt by such Indemnitor of such notice from the Indemnified Persons; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Persons. In the event addition, if under applicable standards of professional conduct, a Third-conflict between any Indemnified Persons and any Indemnitor exists in respect of such Third Party Claimclaim, the Indemnifying Indemnitor shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict (but not more than one firm of counsel). The Indemnitor shall be liable for the fees and expenses of counsel employed by the Indemnified Persons for any period during which the Indemnitor has not assumed the defense of any such Third Party claim. If the Indemnitor assumes such defense, the Indemnified Persons shall have the right to participate in the defense thereof, including meeting with applicable Governmental Authorities and other Third Party claimants and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor chooses to defend or prosecute any Third Party claim, the Indemnified Persons shall agree to any settlement, compromise or discharge of such Third Party claim that the Indemnitor may elect to retain counsel of recommend and that, by its choice to represent such terms, discharges the Indemnified Parties Persons from any Liability in connection with such Action Third Party claim; provided, however, that, without the consent of the Indemnified Persons, the Indemnitor shall not consent to, and the Indemnified Persons shall pay not be required to agree to, the fees, charges and disbursements entry of such counsel so long as any judgment or enter into any settlement that (i) the Indemnifying Party notifies provides for injunctive or other non-monetary relief affecting the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (Persons or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name any affiliate of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigationPersons, (xii) require actions that in more than a de minimis manner interfere with or limit the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf operations of the Indemnified Party Alloy Business or the Brazilian Business or (yiii) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall does not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes include as an unconditional term thereof the giving of a release from all liability Liability with respect to such claim, and, in addition to claim by each claimant or plaintiff for the foregoing the Indemnifying Party shall not settle benefit of each Indemnified Person (and without any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected fund being expended by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheldPerson thereunder).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any non-affiliated third party (a “Third Party”) or Governmental Authority Body institutes, threatens or asserts any Action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the an Indemnified Parties Party to provide give a timely and adequate Claim NoticeNotice shall not relieve the Indemnifying Party of its obligations under this Article XI except to the extent that the Indemnifying Party is actually prejudiced by such failure, it being understood that Claim Notices in respect of a breach of a representation or warranty must be delivered prior to the expiration of any applicable survival period specified in Section 11.1(d)(i) for such representation or warranty and that Claim Notices in respect of a breach of a covenant or agreement must be delivered prior to the expiration of any applicable survival period specified in Section 14.1 for such covenant or agreement; provided, that if, prior to such applicable date, the Indemnified Party shall have notified the Indemnifying Party in accordance with the requirements of this Section 11.2(a) of a claim for indemnification under this Article XI (whether or not formal legal action shall have been commenced based upon such claim), such claim shall continue to be subject to indemnification in accordance with this Article XI notwithstanding the passing of such applicable date.
(b) In The Indemnifying Party may, by notice delivered within twenty (20) Business Days after the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnified Party may take any actions reasonably necessary to defend any Third-Party Claim prior to the time that it receives notice from the Indemnifying Party as contemplated by the preceding sentence. The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal or insurance regulatory enforcement proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 11.2(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 11.2(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided, that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimAction. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (consent, which shall not be unreasonably withheld), conditioned or delayed, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid in an amount less than or reimbursed by equal to the maximum indemnification responsibility of the Indemnifying Party, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to Liability arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not to be unreasonably withheld, conditioned or delayed).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties), subject to any bona fide claims of attorney-client privilege.
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within sixty (60) Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article XI; provided that the failure of an Indemnifying Party to give such notice shall not affect such Indemnifying Party’s obligations under this Article XI except to the extent that the Indemnified Party is prejudiced by such failure to give such notice.
(f) If there shall be any conflicts between the provisions of this Section 11.2 and Article XII, the provisions of Article XII shall control with respect to Tax contests.
Appears in 1 contract
Samples: Master Transaction Agreement (Protective Life Insurance Co)
Notice of Claim; Defense. Scorpio Gold (aon behalf of itself, Scorpio Sub and, if applicable, the other Scorpio Indemnified Persons) If on one hand, and Royal Standard (ion behalf of itself, Manhattan and, if applicable, on behalf of the other Royal Standard Indemnified Persons) on the other hand, shall give each other prompt written notice of any third third-party or Governmental Authority institutes, threatens or asserts any Action Claim that may give rise to Losses for which a any indemnification obligation under this Article 9, together with the estimated amount of such Claim, the method of computation thereof and the basis of such Claim (to the extent known, all with reasonable particularity) and the party potentially subject to indemnifying (an the “Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved have the right to assume the defense (at its own expense) of any such Claim through counsel of its choosing by so notifying the party potentially being indemnified (the “Indemnified Party”) in writing within 15 days of the first receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, however, that any such counsel must be reasonably satisfactory to the Indemnified Party and must not have any conflict with respect to such action or Indemnified Party. Failure to give such notice will not affect the indemnification obligations under this Article X only if (and then only hereunder except to the extent that) it is actually prejudiced by the failure of actual prejudice. If the Indemnified Parties Party is a subject of any such Claim or action, and under applicable standards of professional conduct, a conflict with respect to provide a timely any significant issue between any Indemnified Party and adequate Claim Notice.
(b) In the event any Indemnifying Party reasonably exists in respect of a Thirdsuch third-Party party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges reasonable fees and disbursements expenses of such additional counsel so long as (i) the may be required to be retained in order to eliminate such conflict. The Indemnifying Party notifies shall be liable for the Indemnified Party, within thirty (30) days after fees and expenses of counsel employed by the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party period during which the Indemnifying Party has not assumed the defense of any such third-party Claim, other than during any period in which the Indemnified Party has failed to give notice of the third-party Claim as provided above. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the Indemnifying Party’s counsel. If the Indemnifying Party chooses to defend or cannot assert on behalf prosecute a third-party Claim, the Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation will include, to the extent reasonably requested, the provision to the Indemnifying Party of records and information reasonably relevant to such third-party Claim, and making personnel of the Indemnified Party or (y) available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party failed chooses to defend or is failing prosecute any third-party Claim, the Indemnified Party shall agree to vigorously prosecute any settlement, compromise or defend discharge of such claim. The third-party Claim that the Indemnifying Party may recommend and that, by its terms, discharges the Indemnified Party and each of its Affiliates from the full amount of liability in connection with such third-party Claim; provided, however, that, the Indemnified Party shall not settle any such Action without be required to agree to the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission entry of any violation judgment or enter into any settlement that (i) provides for injunctive or other non-monetary relief affecting the Indemnified Party or any of applicable law and its Affiliates, or (3ii) such settlement includes does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition Claim by each claimant or plaintiff to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent and each of its Affiliates that is the subject of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)third-party Claim.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Royal Standard Minerals Inc)
Notice of Claim; Defense. (a) If (i) any third party The Purchaser Indemnities or Governmental Authority institutesSylvan Indemnities, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) as the case may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an the “Indemnified Party”) shall have a give Sylvan or the Purchaser, as the case may be (the “Indemnifying Party”) prompt notice of any third-party claim that may give rise to be indemnified by an any indemnification obligation under this Section 6, together with the estimated amount of such claim, and the Indemnifying Party shall have the right to assume the defense (at the Indemnifying Party’s expense) of any such claim through counsel of the Indemnifying Party’s own choosing by so notifying the Indemnified Party within 30 days of the first receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, however, that does any such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not involve affect the indemnification obligations hereunder in the absence of actual and material prejudice. If the Indemnifying Party chooses to defend or prosecute a Thirdthird-Party Claimparty claim, then the Indemnified Party shall promptly send to cooperate in the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party defense or prosecution thereof, which cooperation shall be relieved of its indemnification obligations under this Article X only if (and then only include, to the extent that) it is actually prejudiced reasonably requested by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party ClaimIndemnifying Party, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action retention, and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim provision to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) of records and information reasonably relevant to such Third Party Claim third-party claim, and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name making employees of the Indemnified Party in accordance with the terms available on a mutually convenient basis to provide additional information and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission explanation of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)materials provided hereunder.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. Subject to the terms of Article X of the Administrative Services Agreement:
(a) If (i) any non-affiliated third party or Governmental Authority Body institutes, threatens or asserts any Action that may give rise to Losses for which a party Party (an “"Indemnifying Party”") may be liable for indemnification under this Article X VIII (a “"Third-Party Claim”") or (ii) any Person entitled to indemnification under this Agreement (an “"Indemnified Party”") shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and to the extent practicable based on then-available information, a good faith estimate of the amount of all related Losses (a “"Claim Notice”"). The ; provided, however, that the failure to provide such notice shall not release the Indemnifying Party shall be relieved from any of its indemnification obligations under this Article X only if (and then only VIII except to the extent that) it that the Indemnifying Party is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the The Indemnifying Party shall not be entitled to assume the conduct and or maintain control of such settlement the defense of any Third-Party Claim and defense shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (wi) the claim for indemnification Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) investigation against the Indemnified Party is advised by or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 8.3(b), in the event of a Third-Party Claim, the Indemnifying Party may elect to assume, at its own expense, the defense of a Third-Party Claim and retain counsel chosen by it that there are one or more defenses available reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Third-Party Claim. Subject to Section 8.3(b), the Indemnified Parties may participate, at their own expense and through separate legal counsel of their choice, in the defense of any such Third-Party Claim; provided, however, that the Indemnifying Party shall (i) control the defense of the Indemnified Parties in connection with such Action and (ii) bear the reasonable fees, costs and expenses of such separate counsel if an actual or potential conflict of interest makes representation by the same counsel inappropriate. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of a Third-Party Claim to the extent that such Third-Party Claim is subject to indemnification by the Indemnifying Party under this Article VIII. If the Indemnifying Party chooses to assume the defense of any Third-Party Claim, the Reinsurer or canthe Ceding Company (as the case may be) shall, and shall cause each of its Affiliates and Representatives to, reasonably cooperate (including, upon the reasonable request of the other Party, making reasonably available books, records and personnel with respect to the subject matter of such Third-Party Claim) with the Indemnifying Party in the defense of such Third-Party Claim. All costs and expenses incurred in connection with such reasonable cooperation shall be borne by the Indemnifying Party. If the Indemnifying Party has assumed the defense of any Third-Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, consent to a settlement, compromise or discharge of, or the entry of any judgment arising from, any Third-Party Claim; provided, however, that no such consent shall be required if (i) such settlement, compromise, discharge or entry of any judgment (A) does not assert involve any finding or admission of any violation of Applicable Law or admission of any wrongdoing or any violation of the rights of any Person and does not include a statement or admission of fault, culpability or failure to act by or on behalf of any Indemnified Party, and (B) does not subject the Indemnified Party to any injunctive relief or other equitable remedy and does not encumber any of the assets of any Indemnified Party or result in any restriction or condition that would apply to or affect any Indemnified Party or the conduct of any Indemnified Party's business and (yii) (A) the Indemnifying Party failed pays or causes to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement or judgment (unless otherwise provided in such settlement or judgment) and (B) such settlement, compromise, discharge or entry of judgment includes a complete and unconditional release of each Indemnified Party from any and all Liabilities in respect of such Third-Party Claim. If the Indemnifying Party has assumed the defense of a Third-Party Claim, and is failing to vigorously prosecute or defend such claim. The Indemnifying in compliance with its obligations under this Section 8.3(c), the Indemnified Party shall not settle settle, compromise or consent to the entry of any judgment with respect to such Action Third-Party Claim or admit to any liability with respect to such Third-Party Claim without the relevant Indemnified Parties’ prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, delayed or conditioned), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if If the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defend the Indemnified Party against a Third-Party Claim, then the Indemnified Parties Party shall have the right to assume control of its own defense (without in any way waiving or otherwise affecting the defense in connection with such ActionIndemnified Party's rights to indemnification pursuant to this Agreement), and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties Party shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not to be unreasonably withheld, conditioned or delayed).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Samples: Reinsurance Agreement (Hartford Life Insurance Co Separate Account Two Dc Var Ac Ii)
Notice of Claim; Defense. An Indemnified Party shall give the applicable Indemnifying Party prompt written notice of any third-party claim (aa "THIRD-PARTY CLAIM") If (i) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for any indemnification obligation under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party ClaimVIII, then together with the Indemnified Party shall promptly send to estimated amount of such claim, and the Indemnifying Party a shall have the right to assume the defense (at the Indemnifying Party's expense) of any such claim through counsel of the Indemnifying Party's own choosing by so notifying such Indemnified Party within 30 days of the first receipt by the Indemnifying Party of such written notice specifying from such Indemnified Party; PROVIDED, HOWEVER, that any such counsel shall be reasonably satisfactory to the nature Indemnified Party. Failure to give such written notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Indemnified Party and the Indemnifying Party exists in respect of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges reasonable fees and disbursements expenses of such additional counsel so long as (i) may be required to be retained in order to resolve such conflict. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party notifies has not assumed the Indemnified Party, within thirty defense of any Page 57 such Third-Party Claim (30) days after other than during any period in which the Indemnified Party has given will have failed to give written notice of the Third-Party Claim as provided above). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party is assuming shall control such defense. If the defense against (Indemnifying Party chooses to defend or settlement of) such Third prosecute a Third-Party Claim and will indemnify Claim, the Indemnified Party against such Third Party Claim in its name or, if necessary, shall cooperate in the name defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to Indemnifying Party, of records and information reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third-Party Claim, the Indemnified Party in accordance with the terms and limitations shall agree to any settlement, compromise or discharge of this Article X; provided, such Third-Party Claim that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party may recommend and that, by its terms, discharges the Indemnified Party and its counsel Affiliates from the full amount of liability in connection with such Action and (B) Third-Party Claim; PROVIDED, HOWEVER, that, without the consent of the Indemnified Party, the Indemnifying Party shall not be entitled to assume the conduct consent to, and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it shall not be required to agree to, the entry of any judgment or enter into any settlement that there are one (i) provides for injunctive or more defenses available to other non-monetary relief affecting the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf any Affiliate of the Indemnified Party or (yii) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall does not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes include as an unconditional term thereof the giving of a release from all liability with respect to such claim, and, in addition claim by each claimant or plaintiff to each Indemnified Party that is the foregoing the Indemnifying subject of such Third-Party Claim. The Indemnified Party shall not settle agree to any third party claim with respect to Taxes that could adversely affect settlement of, or entry of any judgment arising from, any Third-Party Claim without the Indemnified Party without prior written consent of such Indemnified the Indemnifying Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense withheld or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)delayed.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Samples: Stock Purchase Agreement (Granite Broadcasting Corp)
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority institutes, threatens or Body institutes asserts any Action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may be liable for indemnification under this Article X XIII (a “Third-Party Claim”) or (ii) any Person that may be entitled to indemnification under this Agreement (an “Indemnified Party”) shall have desires to make a claim not involving a Third-Party Claim to be indemnified by an Indemnifying Party that does not involve a Third-Party ClaimParty, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses to the extent they are ascertainable (a “Claim Notice”). The Indemnifying Party shall not be relieved from any of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the XIII as a result of a failure of the Indemnified Parties to provide a timely and adequate Claim NoticeNotice except to the extent that it is prejudiced by such failure.
(b) In The Indemnifying Party may, by notice delivered within twenty (20) Business Days of the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnified Party may take any actions reasonably necessary to defend any Third-Party Claim prior to the time that it receives notice from the Indemnifying Party as contemplated by the preceding sentence. The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 13.03(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 13.03(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action. To the extent such action can be taken in a way that does not unreasonably jeopardize the attorney-client privilege: (i) the Indemnified Party’s right to participate in the defense of any Action shall include the right to attend all significant internal meetings, all meetings with representatives of plaintiffs, hearings and the like; and (Bii) counsel for a Indemnified Party also shall be given a reasonable opportunity to comment upon all memoranda of law, pleadings and briefs and other documents relating to the Third-Party Claim, and the Indemnifying Party and its counsel shall not be entitled give reasonable consideration to assume the conduct and control comments of such settlement and defense if (w) the claim counsel for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimParty. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Partydamages, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects does not to promptly retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall may retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall such consent not to be unreasonably withheld, delayed or conditioned).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within twenty (20) Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article XIII.
Appears in 1 contract
Samples: Administrative Services Agreement (Union Security Insurance Co Variable Account C)
Notice of Claim; Defense. (a) If (i) any third third-party or Governmental Authority institutes, threatens institutes or asserts any Action claim, demand, investigation, action or proceeding (each of the foregoing, a “Proceeding”) (other than any Proceeding with respect to Taxes, which is governed by Section 5.4) that may give rise to Losses for which a party (an “Indemnifying Party”) Party may be liable for indemnification under this Article X VIII (a “Third-Party party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) Party shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and Proceeding and, to the extent practicable, the estimated amount of all related Losses liabilities (a “Claim Notice”)) and shall provide the Indemnifying Party with such additional information with respect thereto as the Indemnifying Party may reasonably request. The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if VIII solely (and then only only) to the extent that) that it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party party Claim, the Indemnifying Party may elect may, at its own expense, (i) participate in the defense of any such Third-party Claim and (ii) upon notice to retain the Indemnified Party assume the defense thereof with counsel of its own choice if it gives written notice of its intention to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel do so long as (i) the Indemnifying Party notifies to the Indemnified Party, Party within thirty (30) days after the Indemnified Party has given notice of the receipt of the Claim Notice with respect to such Third-Party Claim to the Indemnifying Party, that Claim. If the Indemnifying Party is assuming the defense against (or settlement of) assumes such Third Party Claim and will indemnify defense, the Indemnified Party against such Third Party Claim in its name orParties may participate, if necessaryat their own expense and through legal counsel of their choice, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; providedany such Proceeding, provided that (A) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle any such Action Proceeding without the relevant Indemnified Parties’ prior written consent (consent, unless the terms of such settlement provide for no relief other than the payment of monetary damages, which shall not amounts will be unreasonably withheldfully indemnified under Section 8.1(a) or Section 8.1(c), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldas applicable. Notwithstanding the foregoing, (x) if the Indemnifying Party elects not to retain counsel and assume control of such defense (or is otherwise not entitled fails to do so in accordance within thirty (30) days of the receipt of the Claim Notice with this Section 10.02respect to such third-party claim) or (y) if the Indemnified Party reasonably determines, based on the advice of outside counsel, that representation of both the Indemnifying Party and the Indemnified Party by the same law firm would create a conflict of interest, then the Indemnified Parties shall assume control of the defense retain their own law firm in connection with such ActionProceeding, and the reasonable fees, charges and disbursements (“Fees”) of no more than one such counsel per jurisdiction selected by the Indemnified Parties separate law firm shall be reimbursed by the Indemnifying Party. Under no circumstances will ; provided, however, that the Indemnifying Party have shall not be obligated to pay the Fees of more than one separate law firm for all Indemnified Parties, taken together, except in any liability case in connection with which the representation of one or more Indemnified Parties by one law firm would create a conflict of interest, in which case the Indemnifying Party shall reimburse the Indemnified Parties for the reasonable Fees of separate law firms retained by each such Indemnified Party (it being agreed that the aggregate Fees of all such law firms shall be deemed to be reasonable only to the extent that such Fees do not exceed the amount of Fees that would be considered reasonable had only a single law firm been retained to represent all Indemnified Parties in such matter). In the event any settlement Indemnified Party settles or compromises or consents to the entry of any Action that is entered into judgment with respect to any Third-party Claim without its the prior written consent of the Indemnifying Party (which shall not be unreasonably withheldwithheld or delayed), each Indemnified Party shall be deemed to have waived all rights against the Indemnifying Party for indemnification under this Article VIII with respect to such Third-party Claim.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may could reasonably expected to be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then then, in the case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying (to the extent known) the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts shall be relieved of its indemnification obligations under this Article X only if (and then only to not affect the extent that) it is actually prejudiced by the failure rights of the Indemnified Parties except to provide a timely and adequate Claim Noticethe extent that such failure actually prejudices the Indemnifying Party.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect will have thirty (30) calendar days from the date on which the Indemnifying Party receives the Claim Notice to notify the Indemnified Parties in writing (email being sufficient) that the Indemnifying Party elects to assume the defense of such Third-Party Claim and to retain legal counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action and the Indemnifying Party shall pay the fees, charges and disbursements of such counsel. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its Party’s counsel in connection with such Action and Action.
(Bc) Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party shall not be entitled to assume the conduct and or continue control of such settlement and the defense of any Third-Party Claim (A) if (wi) the claim for indemnification such Third- Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation (ii) such Third-Party Claim seeks an injunction or investigationequitable relief against any Indemnified Party (other than in case where the primary remedy being sought is monetary damages), (xiii) the Indemnifying Party has failed or is failing to defend in good faith such Third-Party Claim, or (iv) the Indemnifying Party is also a party to such Third-Party Claim, and in the opinion of the Indemnified Party’s outside legal counsel, a conflict exists between the Indemnifying Party and the Indemnified Party is advised by counsel chosen by it that (or there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by unavailable to the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).or
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority Entity institutes, threatens or asserts any Action or other claim that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X ARTICLE VIII (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall may in good faith have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), then the Indemnified Party shall will promptly send to the Indemnifying Party a written notice specifying (to the extent known) the nature of such claim and the amount of all related Losses (a “Claim Notice”). The ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts will not affect the rights of the Indemnified Party except to the extent that such failure actually prejudices the Indemnifying Party and, to the extent prejudiced, the obligation of the Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only reduced to the extent that) it is actually prejudiced by the failure of any actual monetary prejudice resulting from the Indemnified Parties Party’s delay or failure to provide a timely and adequate Claim Noticegive any such notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain assume the defense of such Third-Party Claim by retaining counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Third-Party Claim and shall will pay the fees, charges and disbursements of such counsel so long counsel; provided, that, as (i) a condition precedent to the Indemnifying Party notifies electing to assume the Indemnified Partydefense of such Third Party Claim, within thirty it shall (30x) notify Purchaser in writing as promptly as reasonably practicable (but in no event later than 20 days after the Indemnified Party has given notice receipt of the Third-Party Claim Notice) of its election to the Indemnifying Partydo so, and (y) acknowledge in writing that the Indemnifying Party it is assuming the defense against (or settlement of) such Third Party Claim and will obligated to indemnify the Indemnified Party against with respect to such Third Third-Party Claim in hereunder. If the Indemnifying Party has not properly elected to assume the defense of such Third-Party Claim pursuant to the prior sentence, or fails to take reasonable steps necessary to defend diligently the Third-Party Claim after notifying Purchaser (on behalf of the applicable Indemnified Party) of its name orelection to assume of the defense of such Third-Party Claim, if necessary, in the name of the Indemnified Party may assume such defense, and the reasonable fees of its attorneys will be covered by the indemnity provided for in accordance with this ARTICLE VIII upon determination of the terms Indemnifying Parties’ indemnity obligations. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnified Parties may participate, at their own expense and limitations through legal counsel of this Article X; their choice, in any such Action, provided, that (Ai) subject to the preceding sentence, the Indemnifying Party may elect to continue to control the defense of the Indemnified Parties in connection with such Action and (ii) the Indemnified Parties and their counsel shall will reasonably cooperate with the Indemnifying Party and its Party’s counsel in connection with such Action and Action. If the Indemnifying Party has properly elected to assume the defense of a Third-Party Claim pursuant to the first sentence of this Section 8.3(b), the Indemnifying Party will have the right to settle, compromise or discharge such Third-Party Claim either (A) with the prior written consent of the applicable Indemnified Party (which consent will not be unreasonably withheld, conditioned or delayed) or (B) without any Indemnified Party’s consent if such settlement, compromise or discharge provides for no relief other than the payment of monetary damages (including monetary fines or penalties) and such monetary damages are paid in full by the Indemnifying Party, requires no admission of Liability by any Indemnified Party (with no right of indemnification or other contribution from the Indemnified Party or its Affiliates) and contains a full release of the Indemnified Party and its Affiliates from any Liabilities arising out of such Third-Party Claim. Notwithstanding the foregoing, if (i) the Indemnifying Party shall elects not be entitled to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume the conduct and control of such settlement and defense if of a Third-Party Claims within 20 days of receiving a Claims Notice with respect to such Third-Party Claim, (wii) the Indemnified Party determines (after obtaining advice of counsel) that an actual or apparent conflict of interest exists between the Indemnifying Party and such Indemnified Party that precludes effective joint representation with respect to such Third-Party Claim, (iii) such Third-Party Claim involves a bona fide claim for indemnification injunctive relief against the Indemnified Party with respect to such Action or claim, (iv) such Third-Party Claim relates to or arises in connection with any criminal proceeding, actionAction, indictment, investigation or allegation or investigation, (xv) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert Purchaser (on behalf of the applicable Indemnified Party) reasonably believes such Third-Party Claim, if adversely determined, would impair in any material respect the business or operations of the Indemnified Party or any of its Affiliates (y) other than the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheldECM Business), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall Party may upon 20 days written notice to the Indemnifying Party retain counsel reasonably acceptable to the Indemnifying Party in connection with such Third-Party Claim and assume control of the defense of the Indemnified Parties in connection with such ActionThird-Party Claim, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall will be reimbursed payable by the Indemnifying Party; provided, the Indemnifying Parties may continue to participate, at their own expense and through legal counsel of their choice, in any such Action. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third-Party Claim, the parties hereto will cooperate in the defense thereof in accordance with Section 8.3(c). Under no circumstances will the Indemnifying Party have any liability Liability in connection with any settlement of any Action Third-Party Claim that is entered into without its prior written consent (which shall will not be unreasonably withheld, conditioned or delayed).
(c) From and after the delivery of a Claim NoticeNotice involving a Third Party Claim, at the reasonable written request of the Indemnifying Party, each Indemnified Party shall will grant the Indemnifying Party and its counsel, experts and representatives full access, Representatives reasonable access during normal business hours, and only in such a manner as to not unreasonably interfere with the normal operations of the relevant Indemnified Party, to the books, books and records, personnel Contracts, documents, personnel, premises and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at Notice. Notwithstanding the foregoing or anything contained in this Agreement (but subject to Section 8.3(e)), no cost Indemnified Party will have any obligation to make available to the Indemnifying Party any information if making such information available would be reasonably likely to (i) jeopardize any attorney-client privilege (it being understood that the Indemnified Party will cooperate in any reasonable efforts and requests for waivers (including entry into a joint defense agreement or other than arrangement, in a form reasonably satisfactory to the parties, if either party determines that such joint defense agreement or other arrangement is reasonably necessary to make available such information hereunder) or (ii) contravene any applicable Law, fiduciary duty or binding agreement (including any confidentiality agreement to which the Indemnified Party is a party) (it being understood that the Indemnified Party will cooperate in any reasonable efforts and requests for waivers that would enable otherwise required disclosure to the Indemnifying Party to occur without contravening such Law, duty or agreement). The Indemnified Party shall be entitled to reimbursement by the Indemnifying Party for all reasonable out-of-pocket expenses incurred in connection with any cooperation requested by the Indemnifying Party under this Section 8.3(c).
(d) In the event of a Direct Claim, the Indemnifying Party and the Indemnified Parties)Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations, such dispute will be resolved by litigation in a court of competent jurisdiction pursuant to Section 10.5. In the event of a dispute between an Indemnified Party and an Indemnifying Party relating to a Direct Claim, if the Indemnified Party and the Indemnifying Party reach an agreement to resolve such dispute, a settlement agreement will be prepared and signed by all applicable parties. In the event a dispute between an Indemnified Party and an Indemnifying Party relating to a Direct Claim results in litigation in a court of competent jurisdiction pursuant to Section 10.5, the final and non-appealable judgment with respect to such dispute will be final, binding and conclusive upon the parties thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Notice of Claim; Defense. (a) If (i) any non-affiliated third party or Governmental Authority institutes, threatens Body institutes or asserts any Action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person that may be entitled to indemnification under this Agreement (an “Indemnified Party”) shall have desires to make a claim not involving a Third-Party Claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and a good faith estimate of the amount of all related Losses to the extent they are ascertainable (a “Claim Notice”). The Indemnifying Party shall not be relieved from any of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the as a result of a failure of the Indemnified Parties Party to provide a timely and adequate Claim Notice, except to the extent that it is materially prejudiced by such failure.
(b) In The Indemnifying Party may, by notice delivered within 20 Business Days of the receipt of a Claim Notice with respect to a Third-Party Claim, assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party). The Indemnified Party may take any actions reasonably necessary to defend any Third-Party Claim prior to the time that it receives notice from the Indemnifying Party as contemplated by the preceding sentence. The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (ii) the Third-Party Claim would reasonably be expected to result in an injunction or equitable relief against the Indemnified Party that would, in each case, have a material effect on the operation of the business of such Indemnified Party or any of its Affiliates.
(c) Subject to Section 10.3(b), in the event of a Third-Party Claim, if the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice reasonably acceptable to the Indemnified Parties to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. Subject to Section 10.3(b), if the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action; provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Action. To the extent such action can be taken in a way that does not unreasonably jeopardize the attorney-client privilege: (i) the Indemnified Party’s right to participate in the defense of any Action shall include the right to attend all significant internal meetings, all meetings with representatives of plaintiffs, hearings and the like; and (Bii) counsel for an Indemnified Party also shall be given a reasonable opportunity to comment upon all memoranda of law, pleadings and briefs and other documents relating to the Third-Party Claim, and the Indemnifying Party and its counsel shall not be entitled give reasonable consideration to assume the conduct and control comments of such settlement and defense if (w) the claim counsel for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimParty. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld)consent, unless the terms of such settlement (1A) provide for no relief other than the sole relief provided is payment of monetary damages that are entirely paid or reimbursed by the Indemnifying Partydamages, (2B) there is involve no finding or admission of any breach or violation of applicable law by any Indemnified Party and (3C) such settlement includes include an express unconditional release of each Indemnified Party from all liability with respect to Liability arising from such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheldAction. Notwithstanding the foregoing, if the Indemnifying Party elects does not to promptly retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall may retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall such consent not to be unreasonably withheld, delayed or conditioned).
(cd) From and after the delivery of a Claim NoticeNotice involving a Third-Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives Representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the such Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
(e) In the event any Indemnifying Party receives a Claim Notice from an Indemnified Party that does not involve a Third-Party Claim, the Indemnifying Party shall notify the Indemnified Party within 20 Business Days following its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article X.
Appears in 1 contract
Samples: Reinsurance Agreement (Union Security Insurance Co Variable Account C)
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X XI (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only XI to the extent that) that it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel. If the Indemnifying Party so elects, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimAction. The Indemnifying Party shall not settle any such Action without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission terms of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to provide for no relief other than the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent payment of such Indemnified Party, which consent shall not be unreasonably withheldmonetary damages. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02defense, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens institutes or asserts any Action Proceeding that may give rise to Losses for which a party person (an “Indemnifying Party”) may be liable for indemnification under Article VI or this Article X IX (a “Third-Third Party Claim”) or (ii) any Person person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Third Party Claim (a “Direct Claim”), then then, in case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and and, to the extent then known, the amount of all related Losses Liabilities (a “Claim Notice”). The In the event an Indemnified Party fails to provide a timely and adequate Claim Notice, the Indemnifying Party shall be relieved of its indemnification obligations under Article VI or this Article X only if (and then IX as a result of such failure, only to the extent that) that it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Noticesuch failure.
(b) In the event of a Third-Third Party Claim, the Indemnifying Party may elect to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Action Proceeding and shall pay the fees, charges and disbursements of such counsel so long as and other defense costs. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding; provided that (i) the Indemnifying Party notifies shall have the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim right to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) defend such Third Party Claim by all appropriate proceedings and, so long as it diligently pursues such defense, shall have full control of such defense and will indemnify the Indemnified Party against such Third Party Claim in its name orproceedings, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimProceeding. The Indemnifying Party shall not settle any such Action Proceeding without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheldwithheld or delayed), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission terms of any violation of applicable law and (3) such settlement includes an contain a complete and unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably of any Liability related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties)such Proceeding.
Appears in 1 contract
Notice of Claim; Defense. (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action action that may give rise to Losses for which a party Party (an “Indemnifying Party”) may could reasonably expected to be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then then, in the case of clause (i) or (ii), the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying (to the extent known) the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party ; provided, however, that any failure to give such Claim Notice or to provide any such facts or amounts shall be relieved of its indemnification obligations under this Article X only if (and then only to not affect the extent that) it is actually prejudiced by the failure rights of the Indemnified Parties except to provide a timely and adequate Claim Noticethe extent that such failure actually prejudices the Indemnifying Party.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect shall have thirty (30) days from the date on which the Indemnifying Party receives the Claim Notice to notify the Indemnified Party in writing (email being sufficient) that the Indemnifying Party elects to assume the defense of such Third-Party Claim, and if the Indemnifying Party so notifies the Indemnified Party, the Indemnifying Party shall be entitled to retain counsel of its choice choice, reasonably acceptable to the relevant Indemnified Parties, and to represent such Indemnified Parties in connection with such Action Action, and the Indemnifying Party shall pay the fees, charges and disbursements of such counsel. Should the Indemnifying Party so elect to assume the defense of a Third-Party Claim, the Indemnified Parties may participate, at their own expense and through legal counsel so long as of their choice, in any such Action, provided that (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming shall control the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party Parties in accordance connection with the terms such Action and limitations of this Article X; provided, that (Aii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its Party’s counsel in connection with such Action and Action.
(Bc) Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party shall not be entitled to assume the conduct and or continue control of such settlement and the defense of any Third-Party Claim (A) if (wi) the claim for indemnification such Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation (ii) such Third-Party Claim seeks an injunction or investigationequitable relief against any Indemnified Party (other than in case where the primary remedy being sought is monetary damages), (xiii) the Indemnifying Party has failed or is failing to defend in good faith such Third-Party Claim, or (iv) the Indemnifying Party is also a party to such Third-Party Claim, and in the opinion of the Indemnified Party’s outside legal counsel, a conflict exists between the Indemnifying Party and the Indemnified Party is advised by counsel chosen by it that (or there are one or more defenses available to the Indemnified Party that are unavailable to the Indemnifying Party) or (B) to the extent such Third-Party Claim does not relate to any Losses for which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or is liable pursuant to this Agreement.
(yd) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action without have the relevant Indemnified Parties’ right to settle, compromise or discharge a Third-Party Claim either (i) with the prior written consent of the applicable Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), unless or (1ii) without any Indemnified Party’s consent if such settlement, compromise or discharge (x) provides for no relief other than the sole relief provided is payment of monetary damages that and such monetary damages are entirely paid or reimbursed in full by the Indemnifying Party, (2y) there is no finding or admission includes as an unconditional term thereof the giving by the Person(s) asserting such Third-Party Claim to all Indemnified Parties of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to Third-Party Claim and (z) does not contain an admission of liability or wrongdoing on the foregoing the Indemnifying Party shall not settle part of any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. .
(e) Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel reasonably satisfactory to the relevant Indemnified Parties and assume control of such defense within thirty (30) days of receipt of a Claim Notice or is otherwise not entitled if both the Indemnifying Party and any Indemnified Party are parties to do so in accordance with this Section 10.02or subjects of such Action and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party in connection with such Action and assume control of the defense of the Indemnified Parties in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third-Party Claim, the Parties shall cooperate in the defense thereof in accordance with Section 10.02(f). Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into by the Indemnified Party without its prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(cf) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its employees, legal counsel, experts and representatives full reasonable access, during normal business hourshours and upon prior written notice, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties); provided, however, that nothing herein shall require the Indemnified Party to disclose any information to the Indemnifying Party if such disclosure would jeopardize any attorney-client or other legal privilege or contravene any applicable Law (it being understood that the Indemnified Party shall cooperate in any reasonable requests for waivers in relation to such Law, or privilege that would enable disclosure to the Indemnifying Party to occur without so jeopardizing privilege or contravening such Law).
Appears in 1 contract
Notice of Claim; Defense. If any Proceeding is filed or initiated against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within ten (10) days after the service of the citation or summons); provided, however, that the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall acknowledge in writing to the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such Proceeding, then the indemnifying party shall be entitled, if it so elects, to take control of the defense and investigation of such Proceeding and to employ and engage attorneys of its own choice to handle and defend the same, such attorneys to be reasonably satisfactory to the indemnified party, at the indemnifying party's cost, risk and expense (unless (a) the indemnifying party has failed to assume the defense of such Proceeding or (b) the named parties to such Proceeding include both of the indemnifying party and the indemnified party, and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party and that joint representation would be inappropriate), and to compromise or settle such Proceeding, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. The indemnified party may withhold such consent if such compromise or settlement would adversely affect the conduct of business or requires less than an unconditional release to be obtained. If (i) any third the indemnifying party or Governmental Authority institutesfails to assume the defense of such Proceeding within fifteen (15) days after receipt of notice thereof pursuant to this Section 18.4, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled the named parties to indemnification under this Agreement (an “Indemnified Party”) shall have a claim such Proceeding include both the indemnifying party and the indemnified party and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to be such indemnified by an Indemnifying Party party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send are different from or additional to those available to the Indemnifying Party a written indemnifying party and that joint representation would be inappropriate, the indemnified party against which such Proceeding has been filed or initiated will (upon delivering notice specifying to such effect to the nature indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claim Proceeding on behalf of and for the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (account and then only to the extent that) it is actually prejudiced by the failure risk of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Party, within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim to the Indemnifying Party, that the Indemnifying Party is assuming the defense against (or settlement of) such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article Xindemnifying party; provided, however, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party Proceeding shall not be entitled to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to compromised or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. The Indemnifying Party shall not settle any such Action settled without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld), unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) there is no finding or admission of any violation of applicable law and (3) such settlement includes an unconditional release from all liability with respect to such claim, and, in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Partythe indemnifying party, which consent shall not be unreasonably withheld. Notwithstanding In the foregoingevent the indemnified party assumes defense of the Proceeding, if the Indemnifying Party elects not indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement and will consult with, when appropriate, and consider any reasonable advice from, the indemnifying party of any such defense, compromise or settlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.0218.4 and for any final judgment (subject to any right of appeal), then and the Indemnified Parties shall assume control indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Liability by reason of such settlement or judgment. Regardless of whether the defense indemnifying party or the indemnified party takes up the defense, the indemnifying party will pay reasonable costs and expenses in connection with the defense, compromise or settlement for any Proceeding under this Section 18.4 as they come due, subject to the limitations set forth in this Section 18.4. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and such Actionattorneys in the investigation, trial and defense of such Proceeding and any appeal arising therefrom; provided, however, that the feesindemnified party may, charges at its own cost, participate in the investigation, trial and disbursements defense of no more than one such counsel per jurisdiction selected by Proceeding and any appeal arising therefrom. In the Indemnified Parties event the indemnifying party does not pay all expenses due under this Section 18.4 when due, the indemnified party shall be reimbursed by entitled to settle any Proceeding under this Section 18.4 without the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld).
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant indemnifying party and without waiving any rights the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to indemnified party may have against the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties)indemnifying party.
Appears in 1 contract
Samples: Asset Purchase and Technology License Agreement (Endocare Inc)
Notice of Claim; Defense. Any party seeking to be indemnified hereunder (a) If (i) any third party or Governmental Authority institutes, threatens or asserts any Action that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article X (a “Third-Party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an the “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party that does not involve a Third-Party Claim, then the Indemnified Party shall promptly send to the Indemnifying Party a written notice specifying the nature of such claim and the amount of all related Losses (a “Claim Notice”). The Indemnifying Party shall be relieved of its indemnification obligations under this Article X only if (and then only to the extent that) it is actually prejudiced by the failure of the Indemnified Parties to provide a timely and adequate Claim Notice.
(b) In the event of a Third-Party Claim, the Indemnifying Party may elect to retain counsel of its choice to represent such Indemnified Parties in connection with such Action and shall pay the fees, charges and disbursements of such counsel so long as (i) the Indemnifying Party notifies the Indemnified Partyshall, within thirty (30) days after following discovery of the matters giving rise to a Loss, notify the party from whom indemnity is sought (the “Indemnity Obligor”) in writing of any claim for recovery, specifying in reasonable detail the nature of the Loss, the nature of the underlying claim, the section of this Agreement under which the claim arises and, which party in interest is responsible for the breach or failure to act, and the amount of the liability estimated to arise therefrom (provided that a failure by an Indemnified Party has given to deliver such notice as provided herein shall not relieve the Indemnity Obligor of the Third-Party Claim its obligations under this Agreement except and only to the Indemnifying Party, that extent the Indemnifying Party Indemnity Obligor is assuming the defense against (or settlement of) actually prejudiced by such Third Party Claim and will indemnify the Indemnified Party against such Third Party Claim in its name or, if necessary, in the name of the Indemnified Party in accordance with the terms and limitations of this Article X; provided, that (A) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Action and (B) the Indemnifying Party shall not be entitled failure to assume the conduct and control of such settlement and defense if (w) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (x) the Indemnified Party is advised by counsel chosen by it that there are one or more defenses available to the Indemnified Party which the Indemnifying Party has not or cannot assert on behalf of the Indemnified Party or (y) the Indemnifying Party failed or is failing to vigorously prosecute or defend such claimgive notice). The Indemnifying Indemnified Party shall not settle or compromise any such Action claim by a third party for which it is entitled to indemnification hereunder, without the relevant Indemnified Parties’ prior written consent of the Indemnity Obligor (which shall not be unreasonably withheld)withheld or delayed) unless a suit shall have been instituted against it and the Indemnity Obligor either (i) shall not have undertaken the defense of such suit after notification thereof or (ii) is demonstrably unable to undertake the defense of such suit or satisfy the claims arising thereunder. If the facts pertaining to a Loss arise out of the claim of any third party, unless (1) the sole relief provided is monetary damages that are entirely paid or reimbursed by the Indemnifying Party, (2) if there is no finding any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within fifteen (15) days following its receipt of the notice of such claim, elect to assume the defense or admission the prosecution thereof, including, without limitation, the employment of any violation of applicable law counsel, accountants, consultants or other experts at its cost and (3) such settlement includes an unconditional release from all liability expense; provided, however, that during the interim the Indemnified Party shall use commercially reasonable efforts to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party’s own expense. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, and, all the parties hereto shall cooperate in addition to the foregoing the Indemnifying Party shall not settle any third party claim with respect to Taxes that could adversely affect the Indemnified Party without prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense or is otherwise not entitled to do so in accordance with this Section 10.02, then the Indemnified Parties shall assume control of the defense in connection with such Action, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Action that is entered into without its prior written consent (which shall not be unreasonably withheld)prosecution thereof.
(c) From and after the delivery of a Claim Notice, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its counsel, experts and representatives full access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to the Claim Notice at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties).
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Samples: Asset Purchase Agreement
