Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 4 contracts
Samples: Hiv Cassette License, Marketing and Distribution Agreement, Hiv Barrel License, Marketing and Distribution Agreement (Chembio Diagnostics, Inc.), Hiv Cassette License, Marketing and Distribution Agreement (Chembio Diagnostics, Inc.)
Notice of Claims. Within thirty The indemnified party shall promptly notify the indemnifying party in writing of all matters which may give rise to the right to indemnification hereunder; provided, however, that failure to timely give the notice provided in this Section 16.3 shall not be a defense to the liability of the indemnifying party for such claim, but the indemnifying party may recover any actual damages arising from the indemnified party’s failure to give such timely notice. The indemnified party shall not admit any liability with respect to, or settle, compromise or discharge any such matter covered by this Section 16 without the indemnifying party’s prior written consent (30which shall not be unreasonably withheld). The indemnifying party shall have the right, with the consent of the indemnified party (which shall not be unreasonably withheld), to settle all indemnifiable matters related to claims by third parties which are susceptible to being settled. In connection with any claim giving rise to indemnity hereunder, the indemnifying party at its sole cost and expense may, upon written notice to the indemnified party received by the indemnified party within ten (10) calendar days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received indemnifying party’s receipt of notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainableassume the defense of any such claim or legal proceeding. If the indemnifying party assumes the defense of any such claim or legal proceeding, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice indemnifying party shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except select counsel reasonably acceptable to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure indemnified party to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in conduct the defense of such third party claim claims or legal proceedings and, at the indemnifying party’s sole cost and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party expense (which consent costs and expenses shall not be unreasonably withheld applied against any indemnity limitation herein), shall take all steps necessary in the defense or delayedsettlement thereof. At The indemnified party shall be entitled to participate in (but not control) the defense of any time after the Indemnifying Party acknowledges such action, with its obligations hereunder with respect own counsel and at its own expense, and shall be entitled to any third and all information and documentation relating thereto. If the indemnifying party claimdoes not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation resulting therefrom in accordance with the terms hereof, the Indemnifying Party indemnified party may, at the indemnifying party’s expense, defend against such claim or litigation in such manner as it may request deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the Indemnified Party to agree in writing same to the payment indemnifying party, on such terms as the indemnified party may deem appropriate. The indemnified party will cooperate reasonably with the indemnifying party in its efforts to conduct or compromise resolve such matters, including by making available to the indemnifying party relevant documents and witnesses. The indemnified party and the indemnifying party shall keep each other informed of such all settlement negotiations with third parties and of the progress of any litigation with third parties. The indemnified party and the indemnifying party shall permit each other reasonable access to books and records and shall otherwise cooperate with all reasonable requests of each other in connection with any indemnifiable matter resulting from a claim (provided such payment or compromise has been previously approved in writing by the a third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsperson.
Appears in 3 contracts
Samples: License & Supply Agreement (Reliant Pharmaceuticals, Inc.), License & Supply Agreement (Reliant Pharmaceuticals, Inc.), License & Supply Agreement (Reliant Pharmaceuticals, Inc.)
Notice of Claims. Within thirty (30Each party indemnified under Section 4(a) days or Section 4(b) of this Agreement shall, promptly after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received receipt of notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not against such indemnified party in respect of which indemnity may be sought, notify the indemnifying party in writing of the commencement thereof, enclosing a Party to this Agreement (“third party claim”) or has acquired knowledge copy of all papers served on such indemnified party. The omission of any other claim hereunder against another Party hereto (“first indemnified party claim”) so to notify an indemnifying party of any such action shall not relieve the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement indemnifying party from any liability in respect of such action which it may have to such indemnified party on account of the indemnity agreement contained in Section 4(a) or proceedingSection 4(b) of this Agreement, if anyunless the indemnifying party was prejudiced by such omission, and in no event shall relieve the indemnifying party from any other liability which it may have to such indemnified party. Such notice In case any such action shall state be brought against any indemnified party and it shall notify an indemnifying party of the nature and basis of such claimcommencement thereof, the indemnifying party shall be entitled to participate therein and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claimthereof, with counsel satisfactory to such indemnified party; PROVIDED, that if any indemnified party or parties reasonably determine that there may be legal defenses available to such indemnified party that are different from or in addition to those available to such indemnifying party or that representation of its own selection, such indemnifying party and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third indemnified party claim, the Indemnifying Party shall defend by the same with counsel in accordance with this Sectionwould present a conflict of interest, then such indemnifying party shall not be entitled to assume such defense. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect If an indemnifying party is not entitled to any third party claim, the Indemnified Party may, at its expense, participate in assume the defense of such third action as a result of the proviso to the preceding sentence, counsel for such indemnifying party claim and no such third party claim shall be settled entitled to conduct the defense of such indemnifying party and counsel for the indemnified party shall be entitled to conduct the defense of such indemnified party or parties. If an indemnifying party assumes the defense of an action in accordance with and as permitted by the Indemnified Party without the prior written consent provisions of the Indemnifying Party which consent this paragraph, such indemnifying party shall not be unreasonably withheld liable to such indemnified party under Section 4(a) or delayedSection 4(b) of this Agreement for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. At In no event shall the indemnifying party be liable for the fees and expenses of more than one counsel (in addition to local counsel) separate from its own counsel for all indemnified parties in connection with any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment one action or compromise of such third party claim (provided such payment separate but similar or compromise has been previously approved in writing by the third party claimant), and, related actions in the event same jurisdiction arising out of the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy same general allegations or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectscircumstances.
Appears in 3 contracts
Samples: Registration Rights Agreement (American Millennium Corp Inc), Registration Rights Agreement (Apple Computer Inc), Registration Rights Agreement (American Millennium Corp Inc)
Notice of Claims. Within thirty The indemnified party shall promptly notify the indemnifying party in writing of all matters which may give rise to the right to indemnification hereunder; provided, however, that failure to timely give the notice provided in this Section 3.3(b) shall not be a defense to the liability of the indemnifying party for such claim, but the indemnifying party may recover any actual damages arising from the indemnified party’s failure to give such timely notice. The indemnified party shall not admit any liability with respect to, or settle, compromise or discharge any such matter covered by this Section 3.3 without the indemnifying party’s prior written consent (30) days after a Person seeking indemnification which shall not be unreasonably withheld). The indemnifying party shall have the right, with the consent of the indemnified party (which shall not be unreasonably withheld), to settle all indemnifiable matters related to claims by third parties which are susceptible to being settled. In connection with any claim giving rise to indemnity hereunder (hereinafter the “Indemnified Party”) has received notice of resulting from or has acquired knowledge arising out of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or legal proceeding by any Person not a Party person other than the indemnified party, the indemnifying party at its sole cost and expense may, upon written notice to this Agreement (“third the indemnified party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable received by the other Party pursuant hereto indemnified party within ten (hereinafter 10) calendar days after the “Indemnifying Party”), give the Indemnifying Party written indemnifying party’s receipt of notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainableassume the defense of any such claim or legal proceeding. If the indemnifying party assumes the defense of any such claim or legal proceeding, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice indemnifying party shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except select counsel reasonably acceptable to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure indemnified party to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in conduct the defense of such third party claim claims or legal proceedings and, at the indemnifying party’s sole cost and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party expense (which consent costs and expenses shall not be unreasonably withheld applied against any indemnity limitation herein), shall take all steps necessary in the defense or delayedsettlement thereof. At The indemnified party shall be entitled to participate in (but not control) the defense of any time after the Indemnifying Party acknowledges such action, with its obligations hereunder with respect own counsel and at its own expense, and shall be entitled to any third and all information and documentation relating thereto. If the indemnifying party claimdoes not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation resulting therefrom in accordance with the terms hereof, the Indemnifying Party indemnified party may, at the indemnifying party’s expense, defend against such claim or litigation in such manner as it may request deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the Indemnified Party to agree in writing same to the payment indemnifying party, on such terms as the indemnified party may deem appropriate. The indemnified party will cooperate reasonably with the indemnifying party in its efforts to conduct or compromise resolve such matters, including by making available to the indemnifying party relevant documents and witnesses. The indemnified party and the indemnifying party shall keep each other informed of such all settlement negotiations with third parties and of the progress of any litigation with third parties. The indemnified party and the indemnifying party shall permit each other reasonable access to books and records and shall otherwise cooperate with all reasonable requests of each other in connection with any indemnifiable matter resulting from a claim (provided such payment or compromise has been previously approved in writing by the a third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsPerson.
Appears in 3 contracts
Samples: Manufacturing Agreement (Reliant Pharmaceuticals, Inc.), Manufacturing Agreement (Reliant Pharmaceuticals, Inc.), Manufacturing Agreement (Reliant Pharmaceuticals, Inc.)
Notice of Claims. Within thirty As used herein, the term “Claim” means a claim for Company Losses by a Parent Indemnified Party under this Article VII. Subject to the terms of this Agreement, a Parent Indemnified Party shall give written notice of a Claim (30a “Notice of Claim”) days to the Holders’ Agent promptly after a Person seeking indemnification hereunder (hereinafter Parent Indemnified Party becomes aware of the “Indemnified Party”) has received notice of or has acquired knowledge existence of any claim potential Claim, which shall be signed by any Person not a Party to this Agreement an officer of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Parent Indemnified Party shalland state that Company Losses exist and specify in reasonable detail the individual items of such Company Losses included in the amount so stated, if the date each such item was paid, the nature of the misrepresentation, breach of warranty or claim to which such item is indemnifiable by related and the other specific representation, warranty or covenant alleged to have been the subject of such misrepresentation, breach or claim. A Parent Indemnified Party pursuant hereto may submit a Notice of Claim at any time during the period commencing with the Effective Time and ending on the Escrow Expiration Date with respect to claims under Section 7.2(b) for breach of Company representations and warranties that are not Fundamental Company Representations, but shall not be permitted to bring a Notice of Claim with respect to breach of Company representations and warranties that are not Fundamental Company Representations at any time after the Escrow Expiration Date (hereinafter and any delivery or attempted delivery of such a Notice of Claim after the Escrow Expiration Date shall be void and of no force or effect). Notwithstanding anything contained herein to the contrary, any Claims for Company Losses specified in any Notice of Claim delivered to the Holders’ Agent prior to expiration of the Escrow Expiration Date shall remain outstanding until such Claims for Losses have been resolved or satisfied, notwithstanding the passage of the Escrow Expiration Date. Until the Escrow Expiration Date, no delay on the part of a Company Indemnified Party in delivering a Notice of Claim with respect to claims under Section 7.2(b) for breach of Company representations and warranties that are not Fundamental Company Representations shall relieve any Indemnifying Securityholder (each an “Indemnifying Party”), give ) from any of its respective obligations under this Article VII unless (and then only to the extent that) the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsis prejudiced thereby.
Appears in 3 contracts
Samples: Merger Agreement (CareDx, Inc.), Merger Agreement (CareDx, Inc.), Merger Agreement (CareDx, Inc.)
Notice of Claims. Within thirty The indemnified party shall promptly notify the indemnifying party in writing of all matters which may give rise to the right to indemnification hereunder; provided, however, that failure to timely give the notice provided in this Section 3.3(b) shall not be a defense to the liability of the indemnifying party for such claim, but the indemnifying party may recover any actual damages arising from the indemnified party’s failure to give such timely notice. The indemnified party shall not admit any liability with respect to, or settle, compromise or discharge any such matter covered by this Section 3.3 without the indemnifying party’s prior written consent (30) days after a Person seeking indemnification which shall not be unreasonably withheld). The indemnifying party shall have the right, with the consent of the indemnified party (which shall not be unreasonably withheld), to settle all indemnifiable matters related to claims by third-parties which are susceptible to being settled. In connection with any claim giving rise to indemnity hereunder (hereinafter the “Indemnified Party”) has received notice of resulting from or has acquired knowledge arising out of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or legal proceeding by any Person not a Party person other than the indemnified party, the indemnifying party at its sole cost and expense may, upon written notice to this Agreement (“third the indemnified party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable received by the other Party pursuant hereto indemnified party within ten (hereinafter 10) calendar days after the “Indemnifying Party”), give the Indemnifying Party written indemnifying party’s receipt of notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainableassume the defense of any such claim or legal proceeding. If the indemnifying party assumes the defense of any such claim or legal proceeding, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice indemnifying party shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except select counsel reasonably acceptable to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure indemnified party to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in conduct the defense of such third party claim claims or legal proceedings and, at the indemnifying party’s sole cost and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party expense (which consent costs and expenses shall not be unreasonably withheld applied against any indemnity limitation herein), shall take all steps necessary in the defense or delayedsettlement thereof. At The indemnified party shall be entitled to participate in (but not control) the defense of any time after the Indemnifying Party acknowledges such action, with its obligations hereunder with respect own counsel and at its own expense, and shall be entitled to any third and all information and documentation relating thereto. If the indemnifying party claimdoes not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation resulting therefrom in accordance with the terms hereof, the Indemnifying Party indemnified party may, at the indemnifying party’s expense, defend against such claim or litigation in such manner as it may request deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the Indemnified Party to agree in writing same to the payment indemnifying party, on such terms as the indemnified party may deem appropriate. The indemnified party will cooperate reasonably with the indemnifying party in its efforts to conduct or compromise resolve such matters, including by making available to the indemnifying party relevant documents and witnesses. The indemnified party and the indemnifying party shall keep each other informed of such all settlement negotiations with third-parties and of the progress of any litigation with third-parties. The indemnified party and the indemnifying party shall permit each other reasonable access to books and records and shall otherwise cooperate with all reasonable requests of each other in connection with any indemnifiable matter resulting from a claim by a third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsPerson.
Appears in 3 contracts
Samples: Manufacturing Agreement, Manufacturing Agreement (Reliant Pharmaceuticals, Inc.), Manufacturing Agreement (Reliant Pharmaceuticals, Inc.)
Notice of Claims. Within thirty (30) days after a Person seeking Any of the SunEdison Indemnified Parties entitled to indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party pursuant to this Indemnification Agreement of shall notify the commencement TERP Parties (or threatened commencement of any action their respective successors or proceeding by any Person not a Party to this Agreement assigns) (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the each an “Indemnifying Party”) promptly after becoming aware of any Losses which the Indemnified Party shall have determined has given or could give rise to a claim for indemnification under Section 2 herein and in accordance with the terms of the Settlement Agreement (the “Claim Notice”), give . It is agreed that no delay on the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure part of the Indemnified Party to give such notice shall not excuse the in notifying any Indemnifying Party’s obligation to indemnify and, in the case Party of a third party claim, defend the Indemnified Party, except to the extent any Losses will relieve the Indemnifying Party has suffered damage or prejudice by reason of its obligations pursuant to this Indemnification Agreement. If the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by Indemnifying Party notifies the Indemnified Party pursuant that it does not dispute the Losses described in such Claim Notice, or fails to this Section 12.3, notify the Indemnifying Indemnified Party shall notify within fourteen (14) days after delivery of such Claim Notice by the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, disputes the Claim Notice the Indemnifying Party shall pay the amount of Losses to the Indemnified Party set forth in the case of a third party claim, Claim Notice. If the Indemnified Party has disputed its defense obligation liability with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims Losses, and such obligations. In the event dispute has not been resolved within thirty (30) calendar days, then the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by and the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel may seek legal redress in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsSection 4.
Appears in 3 contracts
Samples: Settlement Agreement (Sunedison, Inc.), Merger Agreement (TerraForm Power, Inc.), Settlement Agreement (TerraForm Power, Inc.)
Notice of Claims. Within thirty (30) days after a Person Any party seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any Indemnifiable Loss or potential Indemnifiable Loss arising from an Indemnifiable Claim, whether asserted by a party or a third party, shall give written notice thereof to the party from whom indemnification is sought setting forth in reasonable detail the nature and reasonably estimated amount of, and basis for, such claim by any Person not a to the extent then known. Written notice to the Indemnifying Party to this Agreement of the commencement or threatened commencement existence of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) shall be given by the Indemnified Party shallpromptly after its receipt of an assertion of liability from the third party, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice and in any event within twenty days of such claim and the commencement or threatened commencement of such action or proceedingassertion; provided, if any. Such notice shall state the nature and basis of such claimhowever, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the that failure of the Indemnified Party to give such notice shall not excuse relieve the Indemnifying Party’s obligation to indemnify and, in the case Party of a third party claim, defend the Indemnified Party, its obligations hereunder except to the extent the Indemnifying Party has suffered damage or prejudice it shall have been prejudiced by reason of the Indemnified Party’s failure to give or delay in giving such noticefailure. Within ten (10) business 20 days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3of any Indemnifiable Loss or potential Indemnifiable Loss arising from an Indemnifiable Claim, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party or not it acknowledges its indemnification obligation and, in to indemnify the case of a third party claim, its defense obligation Indemnified Party for the Indemnifiable Loss or potential Indemnifiable Loss with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsIndemnifiable Claim. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent The failure of the Indemnifying Party which consent to respond in accordance with the preceding sentence shall not be unreasonably withheld or delayed. At any time after deemed a refusal by the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request indemnify the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Dynegy Inc /Il/), Stock Purchase Agreement (Ameren Corp), Stock Purchase Agreement (Union Electric Co)
Notice of Claims. Within thirty (30) days Promptly after receipt by a Person seeking indemnification hereunder pursuant to Section 3.1 or 3.2 (hereinafter the an “Indemnified Party”) has received of written notice of any investigation, claim, proceeding or has acquired knowledge other action in respect of any claim by any Person not which indemnification is being sought (each, a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claimClaim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) ), the Indemnified Party shall, if such claim promptly shall notify the Person against whom indemnification pursuant to Sections 3.1 and/or 3.2 is indemnifiable by the other Party pursuant hereto being sought (hereinafter the “Indemnifying Party”), give ) of the commencement thereof; but the omission to so notify the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation relieve it from any liability that it otherwise may have to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent that the Indemnifying Party has suffered damage or prejudice is materially prejudiced and forfeits substantive rights and defenses by reason of such failure. In connection with any Claim as to which both the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by Indemnifying Party and the Indemnified Party pursuant to this Section 12.3are parties, the Indemnifying Party shall notify be entitled to assume the Indemnified Party whether defense thereof. Notwithstanding the assumption of the defense of any Claim by the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with employ separate legal counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim Claim, and no the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs and expenses of such third party claim separate legal counsel to the Indemnified Party if (and only if): (i) the Indemnifying Party shall have agreed to pay such fees, costs and expenses, (ii) the Indemnified Party shall reasonably have concluded that representation of the Indemnified Party by the Indemnifying Party by the same legal counsel would not be appropriate due to actual or, as reasonably determined by legal counsel to the Indemnified Party, potentially differing interests between such parties in the conduct of the defense of such Claim, or if there may be legal defenses available to the Indemnified Party that are in addition to or disparate from those available to the Indemnifying Party, or (iii) the Indemnifying Party shall have failed to employ legal counsel reasonably satisfactory to the Indemnified Party within a reasonable period of time after notice of the commencement of such Claim. If the Indemnified Party employs separate legal counsel in circumstances other than as described in the preceding sentence, the fees, costs and expenses of such legal counsel shall be settled borne exclusively by the Indemnified Party. Except as provided above, the Indemnifying Party shall not, in connection with any Claim in the same jurisdiction, be liable for the fees and expenses of more than one firm of counsel for the Indemnified Party (together with appropriate local counsel). The Indemnified Party shall not, without the prior written consent of the Indemnifying Party (which consent shall not unreasonably be unreasonably withheld withheld), settle or delayed. At compromise any time after Claim or consent to the entry of any judgment that does not include an unconditional release of the Indemnifying Party acknowledges its obligations hereunder from all liabilities with respect to such Claim or judgment or contain any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise admission of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectswrongdoing.
Appears in 3 contracts
Samples: Purchase Agreement (Biovest International Inc), Purchase Agreement (Biovest International Inc), Purchase Agreement (Accentia Biopharmaceuticals Inc)
Notice of Claims. Within thirty The indemnified party shall promptly notify the indemnifying party in writing of all matters which may give rise to the right to indemnification hereunder; provided, however, that failure to timely give the notice provided in this Section 16.3 shall not be a defense to the liability of the indemnifying party for such claim, but the indemnifying party may recover any actual damages arising from the indemnified party’s failure to give such timely notice. The indemnified party shall not admit any liability with respect to, or settle, compromise or discharge any such matter covered by this Section 16 without the indemnifying party’s prior written consent (30which shall not be unreasonably withheld). The indemnifying party shall have the right, with the consent of the indemnified party (which shall not be unreasonably withheld), to settle all indemnifiable matters related to claims by third-parties which are susceptible to being settled. In connection with any claim giving rise to indemnity hereunder, the indemnifying party at its sole cost and expense may, upon written notice to the indemnified party received by the indemnified party within ten (10) calendar days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received indemnifying party’s receipt of notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainableassume the defense of any such claim or legal proceeding. If the indemnifying party assumes the defense of any such claim or legal proceeding, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice indemnifying party shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except select counsel reasonably acceptable to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure indemnified party to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in conduct the defense of such third party claim claims or legal proceedings and, at the indemnifying party’s sole cost and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party expense (which consent costs and expenses shall not be unreasonably withheld applied against any indemnity limitation herein), shall take all steps necessary in the defense or delayedsettlement thereof. At The indemnified party shall be entitled to participate in (but not control) the defense of any time after the Indemnifying Party acknowledges such action, with its obligations hereunder with respect own counsel and at its own expense, and shall be entitled to any third and all information and documentation relating thereto. If the indemnifying party claimdoes not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation resulting therefrom in accordance with the terms hereof, the Indemnifying Party indemnified party may, at the indemnifying party’s expense, defend against such claim or litigation in such manner as it may request deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the Indemnified Party to agree in writing same to the payment indemnifying party, on such terms as the indemnified party may deem appropriate. The indemnified party will cooperate reasonably with the indemnifying party in its efforts to conduct or compromise resolve such matters, including by making available to the indemnifying party relevant documents and witnesses. The indemnified party and the indemnifying party shall keep each other informed of such all settlement negotiations with third-parties and of the progress of any litigation with third-parties. The indemnified party and the indemnifying party shall permit each other reasonable access to books and records and shall otherwise cooperate with all reasonable requests of each other in connection with any indemnifiable matter resulting from a claim by a third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsperson.
Appears in 3 contracts
Samples: License and Supply Agreement, License & Supply Agreement (Reliant Pharmaceuticals, Inc.), License & Supply Agreement (Reliant Pharmaceuticals, Inc.)
Notice of Claims. Within Each Party against whom a claim for indemnity pursuant to this Article 5 shall have been made (each, an “Indemnifying Party”) shall have the right to defend the Person seeking such indemnity (each, an “Indemnified Party”) with counsel of such Indemnifying Party’s choice in respect of any third party claim, so long as (i) such counsel is reasonably satisfactory to the Indemnified Party, (ii) the Indemnifying Party shall have provided written notice to the Indemnified Party, within thirty (30) days after a Person seeking indemnification hereunder (hereinafter receipt by the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Indemnifying Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a related Claims Notice, indicating that the Indemnifying Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) will indemnify the Indemnified Party shallin accordance with the terms of this Article 5, if such claim is indemnifiable by the other Party pursuant hereto and (hereinafter the “Indemnifying Party”), give iii) the Indemnifying Party written notice of such claim and conducts the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure defense of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage claim or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such noticematter actively and diligently. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the The Indemnified Party shall have the right to defend such claim, with retain separate co-counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, sole cost and expense and participate in the defense of any such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent or matter; provided, that any related attorneys’ fees shall not be unreasonably withheld indemnifiable Losses. Knowledge by an Indemnified Party of any breach or delayed. At any time after non-compliance hereunder shall not constitute a waiver of such Indemnified Party’s rights and remedies under this Agreement, provided that such Indemnified Party shall have notified the applicable Indemnifying Party acknowledges its obligations of such breach or non-compliance in a timely manner and in accordance with the terms of this Article 5. No express or implied waiver by an Indemnified Party of any default hereunder with respect shall in any way be, or be construed to be, a waiver of any third party claim, the Indemnifying Party may request the other default. The failure or delay of an Indemnified Party to agree in writing exercise any of its rights granted hereunder regarding any default shall not constitute a waiver of any such right as to the payment any other default, and any single or compromise partial exercise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the any particular right granted to an Indemnified Party hereunder shall promptly agree in writing to such settlement, unless such settlement would involve not exhaust the same or constitute a remedy or remedies, waiver of any other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsright provided herein.
Appears in 2 contracts
Samples: Master Loan Purchase Agreement (LendingClub Corp), Master Loan Purchase Agreement (LendingClub Corp)
Notice of Claims. Within A Party seeking indemnification under this Article 5 (the “Indemnified Party”) shall give prompt written notice to the other Party (the “Indemnifying Party”) of any claim or matter for which it may seek indemnity. The Indemnifying Party will have the right to defend the Indemnified Party against a third party claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within thirty (30) days after a Person seeking indemnification hereunder the Indemnified Party has given notice of the claim or matter that the Indemnifying Party will indemnify the Indemnified Party in accordance with this Article, and (hereinafter ii) the “Indemnifying Party conducts the defense of the third party claim or matter actively and diligently. The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the claim. The Indemnifying Party shall not indemnify the Indemnified Party against any loss, liability or expense incurred by the Indemnified Party to the extent of the Indemnified Party”) has received notice of ’s negligence or has acquired knowledge willful misconduct. Knowledge by the Indemnified Party of any claim by any Person breach or non-compliance hereunder shall not constitute a Party to this Agreement waiver of the commencement Indemnified Party’s rights and remedies under this Agreement, provided the Indemnified Party has notified the Indemnifying Party of such breach or threatened commencement non-compliance in a timely manner. No express or implied waiver by the Indemnifying Party of any action default hereunder shall in any way be, or proceeding by any Person not be construed to be, a Party to this Agreement (“third party claim”) or has acquired knowledge waiver of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement default. The failure or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure delay of the Indemnified Party to give such notice exercise any of its rights granted hereunder regarding any default shall not excuse the Indemnifying Party’s obligation constitute a waiver of such right as to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage any other default and any single or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt partial exercise of any notice issued by particular right granted the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party hereunder shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend not exhaust the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to or constitute a waiver of any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (other right provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsherein.
Appears in 2 contracts
Samples: Loan Purchase Agreement, Loan Purchase Agreement (LendingClub Corp)
Notice of Claims. Within thirty (30) days after a Person seeking Any of the SunEdison Indemnified Parties entitled to indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party pursuant to this Indemnification Agreement of shall notify the commencement GLBL Parties (or threatened commencement of any action their respective successors or proceeding by any Person not a Party to this Agreement assigns) (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the each an “Indemnifying Party”) promptly after becoming aware of any Losses which the Indemnified Party shall have determined has given or could give rise to a claim for indemnification under Section 1 herein and in accordance with the terms of the Settlement Agreement (the “Claim Notice”), give . It is agreed that no delay on the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure part of the Indemnified Party to give such notice shall not excuse the in notifying any Indemnifying Party’s obligation to indemnify and, in the case Party of a third party claim, defend the Indemnified Party, except to the extent any Losses will relieve the Indemnifying Party has suffered damage or prejudice by reason of its obligations pursuant to this Indemnification Agreement. If the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by Indemnifying Party notifies the Indemnified Party pursuant that it does not dispute the Losses described in such Claim Notice, or fails to this Section 12.3, notify the Indemnifying Indemnified Party shall notify within fourteen (14) days after delivery of such Claim Notice by the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, disputes the Claim Notice the Indemnifying Party shall pay the amount of Losses to the Indemnified Party set forth in the case of a third party claim, Claim Notice. If the Indemnified Party has disputed its defense obligation liability with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims Losses, and such obligations. In the event dispute has not been resolved within thirty (30) calendar days, then the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by and the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel may seek legal redress in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsSection 4.
Appears in 2 contracts
Samples: Settlement Agreement (Sunedison, Inc.), Settlement Agreement (Terraform Global, Inc.)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter The Indemnified Party shall promptly notify the “Indemnified Party”) has received notice of or has acquired knowledge Indemnifying Party in writing of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge which may give rise to the right to indemnification hereunder; provided, however, that failure to timely give the notice provided in this Section 8.3 shall not be a defense to the liability of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of for such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent but the Indemnifying Party has suffered damage or prejudice by reason of may recover any actual damages arising from the Indemnified Party’s failure to give or delay in giving such timely notice. Within The Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge any such matter covered by this Article VIII without the Indemnifying Party’s prior written consent (which shall not be unreasonably withheld). The Indemnifying Party shall have the right, with the consent of the Indemnified Party (which shall not be unreasonably withheld, delayed or conditioned), to settle all indemnifiable matters related to claims by third parties which are susceptible to being settled. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a Person other than the Indemnified Party, the Indemnifying Party may, at its sole cost and expense, upon written notice to the Indemnified Party received by the Indemnified Party within ten (10) business calendar days of after the Indemnifying Party’s receipt of notice of such claim, assume the defense of any notice issued by such claim or legal proceeding. If the Indemnified Indemnifying Party pursuant to this Section 12.3assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall notify select counsel reasonably acceptable to the Indemnified Party whether to conduct the defense of such claims or legal proceedings and, at the Indemnifying Party’s sole cost and expense, shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense, and shall be entitled to any and all information and documentation relating thereto. If the Indemnifying Party acknowledges its indemnification obligation and, in does not assume the case defense of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel or litigation resulting therefrom in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimterms hereof, the Indemnified Party may, at its expense, participate in the defense of such third party claim Indemnifying Party’s expense and no such third party claim shall be settled by the Indemnified Party without the upon prior written notice to the Indemnifying Party (with reasonable opportunity for the Indemnifying Party to assume such defense), defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, with the consent of the Indemnifying Party which (such consent shall not to be unreasonably withheld withheld, delayed or delayedconditioned). At any time after The Indemnified Party will cooperate reasonably with the Indemnifying Party acknowledges in its obligations hereunder with respect efforts to any third party claimconduct or resolve such matters, including by making available to the Indemnifying Party may request the relevant documents and witnesses. The Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event and the Indemnifying Party does so, shall keep each other informed of all settlement negotiations with third parties and of the progress of any litigation with third parties. The Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by and the Indemnifying Party, Party shall permit each other reasonable access to which the Indemnified Party reasonably objectsbooks and records and shall otherwise cooperate with all reasonable requests of each other in connection with any indemnifiable matter resulting from a claim by a third Person.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.), Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.)
Notice of Claims. Within thirty (30a) days after a Person seeking indemnification hereunder Any Buyer Group Member or Seller Group Member (hereinafter the “Indemnified Party”) has received seeking indemnification hereunder shall give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a written notice of or has acquired knowledge of (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claim by any Person not a Party to this Agreement for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of computation of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis amount of such claim, andand a reference to the provision of this Agreement upon which such claim is based; provided that a Claim Notice in respect of any pending or threatened action at law or suit in equity by or against a third Person as to which indemnification will be sought (each such action or suit being a “Third Person Claim”) shall be given promptly, if ascertainablebut in no event more than ten (10) Business Days following such Indemnified Party’s receipt of such Third Person Claim; provided, the amount thereof. Notwithstanding the foregoingfurther, the that failure of the Indemnified Party to give such notice within such ten (10) Business Day period shall not excuse relieve the Indemnifying Party’s obligation to indemnify and, in the case Indemnitor of a third party claim, defend the Indemnified Party, its obligations hereunder except to the extent the Indemnifying Party has suffered damage or prejudice it shall have been prejudiced by reason of the Indemnified Party’s failure to give or delay in giving such noticefailure. Within The Indemnitor shall have ten (10) business days of Business Days from receipt of any notice issued by the Indemnified Party pursuant Claim Notice (the “Notice Period”) to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party (i) whether or not the Indemnifying Party acknowledges Indemnitor disputes its indemnification obligation and, in the case of a third party claim, its defense obligation liability hereunder with respect to the claim which was the subject of the Indemnified Party’s notice such Third Person Claim and (ii) whether or whether not it disclaims such obligations. In the event the Indemnifying Party disclaims or fails desires to timely acknowledge its obligations with respect to any claim by defend the Indemnified Party relating to any third party claimagainst such Third Person Claim.
(b) Following expiration of the Notice Period, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Loss and Expense suffered by it.
(c) In calculating any Loss or Expense, such Loss or Expense shall be (i) reduced by any insurance recovery in respect thereof (and no right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations subrogation shall accrue hereunder with respect to any third party claiminsurer); (ii) reduced by any indemnity, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled contribution or other similar payment received by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder (other than pursuant to this Agreement) with respect to such Loss or Expense; (iii) increased by any third party claim, the Indemnifying Party may request net Tax cost incurred by the Indemnified Party to agree in writing to arising from the receipt or accrual of indemnity payments hereunder (grossed up for such increase); and (iv) reduced by any net Tax benefit realized by the Indemnified Party arising from the payment or compromise accrual of any such third party claim indemnified amount.
(provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the d) The Indemnified Party shall promptly agree in writing use commercially reasonable efforts to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsmitigate any losses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Gleacher & Company, Inc.), Asset Purchase Agreement (First Albany Companies Inc)
Notice of Claims. Within thirty (30a) days after a Person Any Parent Indemnified Party or Equityholder Indemnified Party seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by within the other Party pursuant hereto (hereinafter the “Indemnifying Party”)period provided for in Section 8.1, give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify andgive, in the case of indemnification sought by (i) any Equityholder Indemnified Party, to Parent, or (ii) any Parent Indemnified Party, to the Representatives, a third party written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification hereunder that is the subject of the Claim Notice. The Claim Notice shall include (if and to the extent then known) the amount and the method of computation of the amount of such claim, defend a reference to the Indemnified Partyprovision of this Agreement upon which such claim is based and all material documentation relevant to the claim (to the extent not previously provided under this Section 8.5). A Claim Notice shall be given promptly following the claimant’s determination that facts or events are reasonably expected to give rise to a claim for indemnification hereunder; provided, that, the failure to give such written notice shall not relieve any Indemnitor of its obligations hereunder, except to the extent the Indemnifying Party has suffered damage or it demonstrates actual and material prejudice by reason of the Indemnified Party’s such failure. The failure to give submit all relevant documentation with a Claim Notice or delay in giving such notice. Within ten (10) business days of receipt of any notice issued otherwise abide by the Indemnified Party procedural covenants set forth in this Section 8.5 shall not result in the purported Claim Notice not being a proper Claim Notice hereunder, except to the extent such failure results in actual and material prejudice to the parties required to provide the indemnity pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation andAgreement.
(b) An Indemnitor (acting through Parent, in the case of indemnification sought by an Equityholder Indemnified Party, and acting through the Representatives, in the case of indemnification sought by a third party claimParent Indemnified Party) shall have until 5 p.m. Eastern Time on the 30th day after the giving of any proper Claim Notice pursuant hereto to (i) agree to the amount or method of determination set forth in the Claim Notice and to pay or cause to be paid such amount to such Indemnified Party in immediately available funds or (ii) provide such Indemnified Party and the Escrow Agent (in the case of indemnification sought by a Parent Indemnified Party) with written notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the “Dispute Notice”). For a period of 30 days after the giving of any Dispute Notice, its defense obligation a representative of the Indemnitor and the Indemnified Party shall negotiate in good faith to resolve the matter. In the event that the controversy is not resolved within 30 days after the date the Dispute Notice is given, the parties may thereupon proceed to pursue any and all available remedies at law. If (x) the Indemnitor agrees to the Claim Notice pursuant to clause (i) above or fails to provide a timely Dispute Notice pursuant to clause (ii) above or resolves the disagreement described in a Dispute Notice with the Indemnified Party, and, in any such case, the Indemnified Party is a Parent Indemnified Party, or (y) a final, non-appealable Court Order is issued finding that an Parent Indemnified Party is entitled to indemnification for Losses hereunder, then, in either such case, for each Equityholder, such number of Parent Shares (rounded up or down to the nearest whole share) equal to such Equityholder’s Allocable Percentage multiplied by an amount equal to the amount set forth in the Claim Notice or Court Order or the resolved amount (as applicable) divided by the appropriate per share value of Parent Shares determined pursuant to Section 8.7(c) (the “Indemnity Cancelled Parent Shares”) shall be returned to Parent, deemed to be cancelled and all rights such Equityholder may have to such Parent Shares shall be extinguished. Parent and Representatives shall promptly inform the Escrow Agent of the number of Indemnity Cancelled Parent Shares and shall take such action as is necessary to have the Escrow Agent promptly return to the Parent certificates representing such number of Indemnity Cancelled Parent Shares. If (x) the Indemnitor agrees to the Claim Notice pursuant to clause (i) above or fails to provide a timely Dispute Notice pursuant to clause (ii) above or resolves the disagreement described in a Dispute Notice with the Indemnified Party, and, in any such case, the Indemnified Party is an Equityholder Indemnified Party, or (y) a final, non-appealable Court Order is issued finding an Equityholder Indemnified Party is entitled to indemnification for Losses hereunder, then, in either such case, Parent shall pay, or cause to be paid to, the Representative for the benefit of the Equityholder Indemnified Parties in accordance with their respective Allocable Percentages, an amount in cash equal to the amount set forth in the Claim Notice or Court Order or the resolved amount (as applicable).
(c) Other than with respect to the right to submit a Dispute Notice pursuant to Section 8.5(b) and the last two sentences of Section 8.5(b), for which parallel mechanics shall apply to Section 8.6, the provisions of this Section 8.5 shall not apply in the case of a Claim Notice provided in connection with a claim which was the subject of the by a third Person made against an Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim which claims shall be settled governed by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsSection 8.6.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Carpenter Technology Corp), Merger Agreement (Carpenter Technology Corp)
Notice of Claims. Within thirty (30a) days after If a Person seeking indemnification hereunder Party (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge becomes aware of any claim by any Person not a Party to claim, suit, demand, proceeding or other matter under or in connection with this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement Transaction Document (“third party claimClaim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), including pursuant to an indemnity, the Indemnified Party will as soon as reasonably practicable (and in any event, within 20 Business Days of becoming of a Claim) give written notice thereof to the Indemnifying Party written notice (a “Notice of such Claim”). Such Notice of Claim will specify whether the Claim arises as a result of a claim by a Person who is not a party against an Indemnified Party (a “Third Party Claim”) or whether the Claim does not so arise (a “Direct Claim”), and will also specify with reasonable particularity (to the commencement or threatened commencement extent that the information is available):
(i) the factual basis for the Claim; and
(ii) the amount of such action or proceedingthe Claim, if any. Such notice shall state known.
(b) The Indemnified Party will not be liable in respect of a Claim unless the nature Indemnifying party gives a Notice of Claim in accordance with paragraph (a), and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of thereafter the Indemnified Party to give such notice shall not excuse gives the Indemnifying PartyParty access to all records relating to the Claim that is the subject of that notice and allows the Indemnifying Party a period of 30 Business Days to investigate the facts, matters or circumstances that may give rise to the Claim.
(c) The parties acknowledge that Governmental Bodies responsible for Tax matters typically request a response to an inquiry or other claim or notice within 5 days. Without limiting paragraph (b), if:
(i) a Purchaser Group member receives such an inquiry, claim or notice and it will or may lead to a Claim against Nyrstar, the relevant member will use commercially reasonable efforts to provide notice (which will not constitute a Notice of Claim) to Nyrstar of such inquiry, claim or notice within 2 Business Days of receipt by that member of notice from any Governmental Body relating to Taxes, and shall promptly seek an extension of time to respond to the relevant inquiry, claim or notice and notify Nyrstar of any extension which is granted. Nothing in this provision affects a Purchaser Group member’s obligation to indemnify give the Notice of Claim as soon as reasonably practicable; and
(ii) Nyrstar receives such an inquiry, claim or notice and it will or may lead to a Claim against the Purchaser or GPS, Nyrstar will use commercially reasonable efforts to provide notice (which will not constitute a Notice of Claim) to the Purchaser of such inquiry, claim or notice within 2 Business Days of receipt by Nyrstar of notice from any Governmental Body relating to Taxes, and shall promptly seek an extension of time to respond to the relevant inquiry, claim or notice and notify the Purchaser of any extension which is granted. Nothing in this provision affects Nyrstar's obligation to give the Notice of Claim as soon as reasonably practicable.
(d) The obligations of an Indemnifying Party hereunder is conditional upon the Indemnified Party providing a Notice of Claim to the Indemnifying Party in accordance with clause 8(a), except in the case of a third party claim, defend the Indemnified Party, except any Claims based upon or relating to the extent in any manner whatsoever to intentional misrepresentation or fraud by the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give any officer, director, employee, representative or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent Related Body Corporate of the Indemnifying Party Party, as the case may be, which consent shall not Claims may be unreasonably withheld or delayed. At made at any time from and after the Indemnifying Party acknowledges its obligations hereunder with respect Closing Date.
(e) Subject to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim paragraph (provided such payment or compromise has been previously approved in writing by the third party claimantg), and, in the event of a Claim against Nyrstar by the Indemnifying Purchaser and/or GPS under this Agreement that has not been satisfied or settled, the Purchaser will be entitled to withhold payment out of amounts payable under the Earn-Out Agreement to Nyrstar on account of the Earn- Out Consideration up to the amount of the Claim and such withheld amounts will be dealt with as follows:
(i) in the event that it is determined under this Agreement that Nyrstar is obligated to make payment to the Purchaser or GPS in respect of the Claim, the Purchaser will be entitled to retain the amount of such withheld payment to the extent of the amount payable in respect of the Claim, which will be treated as having been paid in full to Nyrstar under the Earn-Out Agreement, and the amount owing by Nyrstar in respect of the Claim will be reduced by the amount of such withholding; and
(ii) in the event that it is determined under this Agreement, that Nyrstar is not obligated to make any payment to the Purchaser or GPS in respect of the Claim (including if the Purchaser or GPS does not proceed with relevant Claim), then the Purchaser will make payment of the amount of the Earn-Out Consideration withheld to Nyrstar forthwith; and
(iii) in the event that paragraph (ii) is applicable, the Purchaser will pay to Nyrstar, at the same time it makes the payment referred to in paragraph (ii), interest at a rate of 10% per annum, compounding annually, on the relevant amount, calculated from the date the payment was otherwise due until the date payment is actually made.
(f) Without limiting clause 8(e)(iii), if a Party does sonot pay to another Party, on the relevant date for payment, an amount actually due in connection with a Claim, the Indemnified first-mentioned Party shall promptly agree will pay to the other Party (in writing addition to such settlementthe amount due) interest at a rate of 10% per annum, unless such settlement would involve a remedy or remediescompounding annually, other than on the relevant amount, calculated from the date the payment was otherwise due until the date payment is actually made.
(g) The Purchaser or GPS (as applicable) may only withhold an amount pursuant to paragraph (e) if it has a legitimate and reasonable belief, after consultation with legal counsel, that its prospects of money damages by recovering an amount under the Indemnifying PartyClaim are greater than 50%, and then only to the extent of the amount which the Indemnified Party it legitimately and reasonably objectsbelieves it will recover.
Appears in 2 contracts
Samples: Share Purchase Agreement (Great Panther Silver LTD), Share Purchase Agreement (Great Panther Silver LTD)
Notice of Claims. Within thirty (30a) days after a Person seeking indemnification hereunder If (hereinafter the i) any Purchaser Indemnitee or Seller Indemnitee (an “Indemnified Party”) believes that it has received notice of suffered or has acquired knowledge of incurred or will suffer or incur any claim Damages for which it is entitled to indemnification under this Article 8, or (ii) any Claim is instituted by any Person not or against a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of with respect to which any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallintends to claim any Damages, if such claim Indemnified Party shall so notify the party or parties from whom indemnification is indemnifiable by the other Party pursuant hereto being claimed (hereinafter the “Indemnifying Party”) with reasonable promptness and reasonable particularity in light of the circumstances then existing (the “Notice of Claim”), give . The Notice of Claim delivered pursuant to this Section 8.4 shall describe the Indemnifying Party written notice of such claim Damages and/or Claim in reasonable detail and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, indicate the amount thereofof the Damages that have been or may be suffered by the Indemnified Party. Notwithstanding the foregoing, the The failure of the an Indemnified Party to give such any notice required by this Section shall not excuse affect any of such Party’s rights under this Article 8 or otherwise except and to the extent that such failure is prejudicial to the rights or obligations of the Indemnifying Party.
(b) Should any Claim be made or suit or proceeding be instituted against any Purchaser Indemnitee, which, if prosecuted successfully, would be a matter for which such Purchaser Indemnitee is entitled to indemnification pursuant to Section 8.2 (a “Third Party Claim”), Purchaser shall notify Seller within twenty (20) Business Days after Purchaser’s obligation receipt of notification of the Third Party Claim, including a description of the factual basis of the Third Party Claim and shall indicate the amount of the Damages. Thereafter, Purchaser shall promptly deliver to indemnify and, in the case Seller copies of a third party claim, defend the Indemnified Party, except all notices and documents (including court papers) received by Purchaser relating to the extent the Indemnifying Third Party has suffered damage or prejudice by reason of the Indemnified Party’s failure Claim. Seller shall be entitled to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of the Third-Party Claim and, if it so chooses, to assume the defense thereof at its own expense with counsel selected by such third party Seller and reasonably acceptable to Purchaser, if Seller gives written notice to Purchaser of its election to assume the defense of such Third Party Claim within ten (10) Business Days after Seller receives notice of such claim and no such third party claim from Purchaser; provided, however, that Seller shall not be settled entitled to assume the defense of any Claim related to, either directly or indirectly, (i) the Program Technology or any intellectual property acquired by Purchaser in connection with this Agreement, (ii) criminal liability, (iii) in which equitable relief is sought against a Purchaser Indemnitee or (iv) with respect to which the Indemnified potential Damages could be reasonably expected to exceed the Indemnification Cap. If Seller assumes the defense of a Third-Party Claim, Seller may not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Purchaser Indemnitee (not to be unreasonably withheld or delayed) if (i) such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Purchaser Indemnitee of a full release from all liability in respect to such Third Party Claim, (ii) such judgment or settlement would result in the finding or admission of any violation of Law by Purchaser or the rights of any person, (iii) the sole relief provided is anything other than monetary damages or (iv) as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Purchaser Indemnitee. Purchaser will cooperate, at the expense of Seller, as Seller may reasonably request in investigating, defending and, subject to the terms set forth above, settling such Third Party Claim. If Seller elects not to defend a Third-Party Claim, is not permitted to defend such Third Party Claim or fails to notify Purchaser of its election as herein provided, Purchaser may pay, compromise, settle or defend such Third-Party Claim at the sole cost and expense of Seller if Seller is determined to be liable to Purchaser hereunder, provided, however, that no such payment in compromise or settlement of, or other compromise or settlement of, may be effected by Purchaser without Seller’s consent (which consent shall not be unreasonably withheld or delayed). At In any time after the Indemnifying Party acknowledges event, Seller shall be entitled, at its obligations hereunder with respect expense, to participate in any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise defense of such third party claim (provided such payment or compromise has been previously approved in writing by Third Party Claim with the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party consent of Purchaser which shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsnot be unreasonably withheld.
Appears in 2 contracts
Samples: License, Development and Commercialization Agreement (MEI Pharma, Inc.), License, Development and Commercialization Agreement (MEI Pharma, Inc.)
Notice of Claims. Within thirty DEFENSE OF THIRD PARTY. A party claiming indemnification under this Article XIV (30the "Asserting Party") days after a Person seeking indemnification hereunder must promptly notify (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”in writing and in reasonable detail) the Indemnified Party shall, if such claim party from which indemnification is indemnifiable by sought (the other Party pursuant hereto (hereinafter the “Indemnifying "Defending Party”), give the Indemnifying Party written notice ") of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim for indemnification within the applicable Survival Period. If such claim relates to a claim, andsuit, if ascertainablelitigation or other action by a third party against the Asserting Party or any fixed or contingent liability to a third party (a "Third Party Claim"), the amount thereofDefending Party may elect to assume and control the defense of the Third Party Claim at its own expense with counsel selected by the Defending Party. Notwithstanding the foregoing, the failure Defending Party may not assume or control the defense if the named parties to the Third Party Claim (including any impleaded parties) include both the Defending Party and the Asserting Party and representation of both parties by the Indemnified Party same counsel would be inappropriate due to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify andactual or potential differing interests between them, in which case the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Asserting Party shall have the right to defend such claim, with the Third Party Claim and to employ counsel of its own selectionreasonably approved by the Defending Party, and compromise such claim without prejudice to its right the extent the matter is determined to be subject to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Defending Party shall defend reimburse the same with counsel in accordance with Asserting Party for the reasonable costs of its counsel. If the Defending Party assumes the defense and control of the Third Party Claim pursuant to this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimSection 14.03, the Indemnified Defending Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld liable for any fees and expenses of counsel for the Asserting Party incurred thereafter in connection with the Third Party Claim (except in the case of actual or delayed. At any time after potential differing interests, as provided in the Indemnifying Party acknowledges its obligations hereunder with respect preceding sentence), but shall not agree to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise settlement of such third party claim (provided such payment or compromise has been previously approved in writing Third Party Claim which does not include an unconditional release of the Asserting Party by the third party claimantclaimant on account thereof, PROVIDED that such requirement shall be deemed waived to the extent that the Asserting Party does not undertake to provide and promptly execute and, concurrently with the delivery of any such release, deliver a corresponding release of the third party claimant with respect to such Third Party Claim. If the Defending Party does not assume the defense of the Third Party Claim pursuant to this Section 14.03, the Asserting Party shall have the right (i) to control the defense thereof and (ii), and, in if the event the Indemnifying Party does so, the Indemnified Asserting Party shall promptly agree have notified the Defending Party of the Asserting Party's intention to negotiate a settlement of the Third Party Claim (at the Defending Party's expense to the extent the matter is determined to be subject to indemnification hereunder), which notice shall include the material terms of any proposed settlement in reasonable detail, to settle the Third Party Claim (at the Defending Party's expense to the extent the matter is determined to be subject to indemnification hereunder) on terms not materially inconsistent with those set forth in such notice, unless the Defending Party shall have notified the Asserting Party in writing of the Defending Party's election to assume liability for and the defense of the Third Party Claim pursuant to this Section 14.03 within ten days after receipt of such settlementnotice, and the Defending Party promptly thereafter shall have taken appropriate action to implement such defense. The Asserting Party shall not be entitled to settle any such Third Party Claim pursuant to the preceding sentence unless such settlement would involve a remedy or remedies, other than includes an unconditional release of the payment of money damages Defending Party by the Indemnifying Partythird party claimant on account thereof, PROVIDED that such requirement shall be deemed waived to which the Indemnified extent that the Defending Party reasonably objectsdoes not undertake to provide and promptly execute and, concurrently with delivery of any such release, deliver a corresponding release of the third party claimant with respect to such Third Party Claim. The Asserting Party and the Defending Party shall use all reasonable efforts to cooperate fully with respect to the defense and settlement of any Third Party Claim covered by this Article XIV.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Dobson Communications Corp), Asset Purchase Agreement (Dobson Communications Corp)
Notice of Claims. Within thirty (30a) days after If (i) any third party or Governmental Authority institutes, threatens or asserts any Proceeding that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this ARTICLE VII (a “Third Party Claim”) or (ii) any Person seeking entitled to indemnification hereunder under this Agreement (hereinafter the an “Indemnified Party”) has received notice of or has acquired knowledge of any a claim to be indemnified by any Person an Indemnifying Party that does not involve a Third Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not Claim (a Party to this Agreement (“third party claimDirect Claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) ), then the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give will promptly send to the Indemnifying Party a written notice (a “Claim Notice”) specifying (to the extent known) in reasonable detail the nature of such claim and the commencement amount of all related Losses (the “Claim Amount”); provided, however, that any failure to give such Claim Notice or threatened commencement to provide any such facts or amounts will not affect the rights of the Indemnified Parties, except to the extent that such failure materially prejudices the Indemnifying Party.
(b) In the event of a Third Party Claim, the Indemnifying Party will be entitled, but not obligated, to assume and control the defense of such action or proceedingThird Party Claim at its expense if it gives notice of its intention to do so to the Indemnified Party within thirty (30) days of the receipt of such notice from the Indemnified Party; provided, however, that, if anythere exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party will be entitled to retain its own counsel, as is reasonably acceptable to the Indemnifying Party, at the expense of the Indemnified Party; provided, further, that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that seeks an injunction or other equitable relief against the Indemnified Party. Such notice shall state If the nature Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party will cooperate with the Indemnifying Party in such defense and basis of such claimmake available to the Indemnifying Party all witnesses, andpertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, if ascertainablethe Indemnified Party, directly or indirectly, is conducting the defense against any such Third Party Claim, the amount thereofIndemnifying Party will cooperate with the Indemnified Party in such defense and make available to the Indemnified Party all such witnesses, pertinent records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. Notwithstanding the foregoing, no Indemnified Party will have any obligation to make available to the failure 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 that would enable otherwise required disclosure to the Indemnifying Party to occur without contravening such Law, duty or agreement).
(c) No Third Party Claim that is being defended by the Indemnifying Party in accordance with the terms of this Agreement will be settled by the Indemnifying Party without the prior written consent of the Indemnified Party (such consent not to give be unreasonably withheld, conditioned or withheld) unless (i) the terms of the proposed settlement include as an unconditional and with-prejudice term thereof the granting by the third party to any relevant Indemnified Party a release from all Liability in respect of such notice shall not excuse Third Party Claim; (ii) there is (A) no finding or admission of any violation of Law by any Indemnified Party and (B) no finding or admission of any violation of the rights of any Person by any Indemnified Party; and (iii) the sole form of relief is monetary damages that will be paid in full by the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying . No Third Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued Claim that is being defended by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with the terms of this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall Agreement will be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which (such consent shall not to be unreasonably withheld withheld, conditioned or delayed. At any time after withheld) unless the Indemnifying Indemnified Party acknowledges its obligations hereunder with respect agrees to any third party claimbear the Liability for such settlement.
(d) In the event of a Direct Claim, the Indemnifying Party may request will have thirty (30) days from receipt of a Claim Notice to deliver a written statement objecting to the Direct Claim made in such Claim Notice explaining in reasonable detail and in good faith the basis for such objection. If the Indemnifying Party has not delivered to the Indemnified Party such written statement within such thirty (30)-day period, then (i) the Indemnifying Party will be deemed to agree have irrevocably waived any right to object to such Indemnification Claim and to have agreed that Losses in the amount of the applicable Claim Amount are indemnifiable hereunder, and (ii) as promptly as practicable and within five (5) Business Days following expiration of such thirty (30)-day period, the Indemnifying Party will cause the Claim Amount to be paid to the Indemnified Party by wire transfer of immediately available funds to a bank account designated in writing to the payment or compromise Indemnifying Party within two (2) Business Days of the expiration of such third party claim thirty (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so30)-day period. If not paid, the Indemnified Party shall promptly agree may seek enforcement of the obligation with respect to the Indemnification Claim in any court of competent jurisdiction.
(e) If an Indemnifying Party objects in writing to such settlementany Direct Claim made in any Claim Notice, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying PartyParty and Indemnified Party will attempt in good faith to agree upon the rights of the respective Parties with respect to each of such Direct Claim. If the Parties should so agree, a memorandum setting forth such agreement will be prepared and signed by both Parties. As promptly as practicable, and within five (5) Business Days following execution of such memorandum, the Indemnifying Party will cause the Claim Amount specified in the executed memorandum to which be paid to the Indemnified Party reasonably objectsby wire transfer of immediately available funds to a bank account designated in writing to the Indemnifying Party within two (2) Business Days following execution of such memorandum. If not paid, the Indemnified Party may seek enforcement of the obligation with respect to the Indemnification Claim in any court of competent jurisdiction.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Clean Energy Fuels Corp.)
Notice of Claims. Within Each Party against whom a claim for indemnity pursuant to this Article 5 shall have been made (each, an “Indemnifying Party”) shall have the right to defend the Person seeking such indemnity (each, an “Indemnified Party”) with counsel of such Indemnifying Party’s choice in respect of any third party claim, so long as (i) such counsel is reasonably satisfactory to the Indemnified Party, (ii) the Indemnifying Party shall have provided written notice to the Indemnified Party, within thirty (30) days after a Person seeking indemnification hereunder (hereinafter receipt by the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Indemnifying Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a related Claims Notice, indicating that the Indemnifying Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) will indemnify the Indemnified Party shallin accordance with the terms of this Article 5, if such claim is indemnifiable by the other Party pursuant hereto and (hereinafter the “Indemnifying Party”), give iii) the Indemnifying Party written notice of such claim and conducts the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure defense of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage claim or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such noticematter actively and diligently. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the The Indemnified Party shall have the right to defend such claim, with retain separate co-counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of any such third party claim or matter; provided that any related attorneys’ fees shall not be indemnifiable Losses unless the Indemnifying Party and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, are both defendants in the event matter for which the Indemnifying Party does so, indemnity is sought and the Indemnified Party shall promptly agree have been advised by counsel representing the Parties an actual conflict of interest would arise in writing to such settlement, counsel’s continued representation of both Parties. Knowledge by an Indemnified Party of any breach or non-compliance hereunder shall not constitute a waiver of such Indemnified Party’s rights and remedies under this Agreement unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsshall have failed to notify the applicable Indemnifying Party of such breach or non-compliance in a timely manner in accordance with the terms of this Article 5. No express or implied waiver by an Indemnified Party of any default hereunder shall in any way be, or be construed to be, a waiver of any other default. The failure or delay of an Indemnified Party to exercise any of its rights granted hereunder regarding any default shall not constitute a waiver of any such right as to any other default, and any single or partial exercise of any particular right granted to an Indemnified Party hereunder shall not exhaust the same or constitute a waiver of any other right provided herein.
Appears in 2 contracts
Samples: Master Loan Purchase Agreement (LendingClub Corp), Master Loan Purchase Agreement (LendingClub Corp)
Notice of Claims. Within thirty Subject to the obligation to assert any indemnification claim within the survival period set forth in Section 10.1, any party entitled to indemnification under this Article X (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) who believes it has received notice a right of or has acquired knowledge of any claim by any Person not a Party to indemnification under this Agreement of the commencement or threatened commencement of and any action or proceeding by any Person not Related Document (a Party to this Agreement (“third party claimClaim”) or has acquired knowledge of any other claim hereunder against another Party hereto shall give prompt written notice to the indemnifying party (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”) of (i) the facts and circumstances giving rise to the claim, (ii) a good faith estimate of the amount of Damages, and (iii) the specific representation, warranty or covenant alleged to have been breached (the “Notice”). Subject to the obligation to assert any Claim within the survival period set forth in Section 10.1, failure to give Notice shall not relieve any Indemnifying Party of any obligations that the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the may have to Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Partyunder this Article X, except to the extent that such failure has prejudiced the Indemnifying Party has suffered damage or prejudice by reason of under the Indemnified Party’s failure to give or delay provisions for indemnification contained in giving such noticethis Agreement. Within ten (10) business 20 days of receipt of the Notice (the “Objection Period”), Indemnifying Party may object (a “Claim Objection”) to any notice issued matter, including the basis and amount of such Claim, set forth in such Notice by the delivering to Indemnified Party pursuant to this Section 12.3written notice setting forth such objections in reasonable detail. If Indemnified Party does not receive a Claim Objection within the Objection Period, the then Indemnifying Party shall notify be deemed to have acknowledged and agreed with the correctness of such Claim amount for the full amount thereof and shall thereafter be precluded from disputing such Claim amount. If Indemnifying Party delivers a timely Claim Objection to Indemnified Party, Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect shall not be entitled to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the recoupment until Indemnified Party shall have received either a certified copy of the right to defend such claim, with counsel final decision (by a court of its own selection, competent jurisdiction) or Indemnified Party and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimexecuted a written agreement resolving such dispute (such final determination by a court of competent jurisdiction or written agreement being a “Final Determination”) setting forth the amount, the if any, which Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect is entitled to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsreceive.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mantra Venture Group Ltd.), Asset Purchase Agreement (Intercloud Systems, Inc.)
Notice of Claims. Within thirty (30) days after a Person seeking A Party entitled to indemnification hereunder (hereinafter the “Indemnified Claiming Party”) has received notice ” and for purposes of or has acquired knowledge of this Agreement if any claim by any Person not Selling Party would qualify as a Claiming Party pursuant to this Agreement Agreement, the Selling Parties’ Representative must act on behalf of such Selling Party) will give the commencement or threatened commencement of any action or proceeding by any Person not a Party obligated to this Agreement provide such indemnification (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the ” and for purposes of this Agreement if any Selling Party would qualify as an Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3Agreement, the Indemnifying Selling Parties’ Representative must act on behalf of such Selling Party) prompt notice of any claim, for which such Claiming Party shall notify proposes to demand indemnification, (1) by a Person that is not a Party nor an Other Indemnified Person (such a claim being a “Third Party Claim” and such notice of such Third Party Claim being the Indemnified “Initial Claim Notice”) or (2) that does not involve a Third Party whether the Indemnifying Party acknowledges its indemnification obligation andClaim, in each case specifying the case amount and nature of a third party claim, its defense obligation with respect such claim (to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsextent known). In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claimThereafter, the Indemnified Claiming Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by will give the Indemnifying Party, promptly after the Claiming Party’s (or any of its applicable Other Indemnified Person’s) receipt or delivery thereof, copies of all documents (including court papers) received or delivered by the Claiming Party (or any such Other Indemnified Person) relating to which any such Third Party Claim. The failure to promptly give such notice or to promptly give such copies will not relieve the Indemnified Indemnifying Party reasonably objectsof any Liability hereunder, except if the Indemnifying Party was prejudiced thereby, but only to the extent of such prejudice.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Imation Corp), Agreement and Plan of Merger (Imation Corp)
Notice of Claims. Within thirty The Indemnified Party shall provide the indemnifying party with reasonably prompt notice of each Third Party Claim or IP Claim to permit the indemnifying party to answer and defend the Third Party Claim or IP Claim. Upon receipt of such notice, the Indemnifying party shall respond in writing to the tender of defense within twenty (3020) days after a Person seeking indemnification hereunder (hereinafter of receipt of such notice. The Indemnified Party shall provide the “indemnifying party with reasonable information and assistance, at the indemnifying party’s expense, to help defend any Third Party Claim or IP Claim. The Indemnified Party”) has received notice of or has acquired knowledge Party shall have the right to employ separate counsel and participate in the defense of any claim Third Party Claim, at its own expense. With respect to IP Claims, Microsoft shall have the exclusive right to undertake the defense against the IP Claim and to select the counsel to handle the IP Claim. A failure by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice to respond in writing to the tender of such claim and defense within the commencement or threatened commencement time specified in this subsection will be deemed a waiver of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party any objection to give such notice shall not excuse the Indemnifying Party’s its obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except but not a waiver of the indemnifying party’s rights to the extent the Indemnifying Party has suffered damage object to any subsequent obligation to indemnify or prejudice by reason of to hold harmless the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect respond to any claim by the Indemnified Party relating to any third party claima tender of defense, the Indemnified Party shall thereafter have the right to defend control the defense of such claimThird Party Claim or IP Claim, with counsel of its own selection, and compromise such claim without prejudice to its including the right to indemnification hereunderselect which law firm defends the claim. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect rejects the tender of defense or fails to any third party claimundertake and continue such defense or fails (in the Indemnified Party’s reasonable opinion) to adequately pursue or conduct such defense, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to will be liable for 100% of any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim legal fees and no such third party claim shall be settled expenses incurred by the Indemnified Party without to compel the prior written consent Indemnifying party to honor its obligations under this Section, regardless of the comparative negligence or fault of the Indemnified party, and the Indemnifying Party which consent expressly waives any right it may have under statutory or common law that might operate to make the recovery of fees under this subsection (iii) a mutual right. For the avoidance of doubt, if each party tenders the defense of the same Third Party Claim or an IP Claim to the other, and unless there can be no good faith dispute that the underlying conduct giving rise to the Loss was solely within the control of Company, Microsoft shall not be unreasonably withheld defend both parties against the Third Party Claim or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect IP Claim, subject to any third party claim, the Indemnifying Party may request the Indemnified Party rights to agree in writing to the payment or compromise of such third party claim recoup its defense expenses under this subsection (provided such payment or compromise has been previously approved in writing by the third party claimantiii), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 2 contracts
Samples: Digital Distribution Agreement (Digital River Inc /De), Digital Distribution Agreement (Digital River Inc /De)
Notice of Claims. Within thirty (30a) days after a Person Any party seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received shall give promptly to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) (it being understood, however, that where the Sellers would otherwise be the Indemnified Parties or Indemnitors, all references to such term as used in the procedural provisions of this Section 10.4 and in Section 10.5 shall instead refer to the Shareholders’ Representative) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of or has acquired knowledge of any claim by any Person not a Party to this Agreement computation of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis amount of such claim, andand a reference to the provision of this Agreement or any other agreement, if ascertainabledocument or instrument executed hereunder or in connection herewith upon which such claim is based; provided, however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 10.4(a) shall not affect such Indemnified Party’s rights under this Article 10 except if, and only to the extent that, the amount thereof. Notwithstanding the foregoing, the Indemnitor’s ability to defend has been materially prejudiced by such failure of the Indemnified Party to give such notice shall not excuse Party.
(b) After the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article 10 shall be determined: (i) by written agreement between the Indemnified Party pursuant and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to this Section 12.3, the Indemnifying Party shall notify which the Indemnified Party whether and the Indemnifying Party acknowledges its indemnification obligation and, Indemnitor shall mutually agree in the case writing. The judgment or decree of a third party claimcourt shall be deemed final when the time for appeal, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice if any, shall have expired and no appeal shall have been taken or whether it disclaims such obligationswhen all appeals taken shall have been finally determined. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the The Indemnified Party shall have the right burden of proof in establishing the amount of Losses suffered by it. All amounts due to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim as so finally determined shall be settled paid by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time wire transfer within five (5) days after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsfinal determination.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Freedom Group, Inc.), Stock Purchase Agreement (Remington Arms Co Inc/)
Notice of Claims. Within thirty 9.2.1 Subject to Section 9.2.2, a Seller Indemnified Party or an Issuer Indemnified Party (30each an Indemnified Party), as the case may be, shall give the Issuers and any relevant Seller (as the case may be) (the Indemnifying Party) notice of any matter which such Indemnified Party has determined has given, or could give, rise to a right of indemnification under this Agreement, within ninety (90) days after of such determination. The notice shall state the amount of the Loss, if known, and the method of its calculation and shall contain a Person seeking reference to the provisions of this Agreement in respect of which such right of indemnification hereunder (hereinafter the “is claimed or arises.
9.2.2 If an Indemnified Party”) has received Party receives written notice of any third party claim or has acquired knowledge potential claim (Third Party Claim) against it which is or may be the subject of any a claim by any Person not a Party to this Agreement it under the Issuer Indemnity or the Seller Indemnity (as the case may be), the obligations and liabilities of the commencement or threatened commencement of any action or proceeding by any Person not a Indemnifying Party under this Clause 9 shall be subject to this Agreement the following terms and conditions:
(“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”1) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), shall give written notice thereof to the Indemnifying Party written notice within sixty (60) days of receipt of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the provided that failure of the Indemnified Party to give such notice shall not excuse release the Indemnifying Party’s obligation Party from any of its obligations under this Clause 9 except to the extent it has been materially prejudiced by such failure;
(2) the Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim and take such further action to contest, resist or appeal the validity, applicability and amount of such claim in appropriate administrative or judicial proceedings either:
(a) in the name of the Indemnified Party (provided that the Indemnifying Party shall indemnify andand secure the Indemnified Party to its reasonable satisfaction against all losses costs damages and expenses which may be incurred thereby), or
(b) in its own name, in either case, at its own expense and through retaining legal advisers of its choice provided that it gives notice of its intention to do so to the case Indemnified Party within five (5) Business Days of receipt of the notice of such Third Party Claim from the Indemnified Party; provided however, that if there exists or is reasonably likely to exist a third party claim, defend conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, except in its sole and absolute discretion, for the same legal advisers to represent both the extent Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own legal advisers, in each jurisdiction for which the Indemnified Party reasonably determines counsel is required, at the expense of the Indemnifying Party. In the event that the Indemnifying Party has suffered damage or prejudice by reason of exercises its right hereunder to undertake the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt defense of any notice issued by such Third Party Claim, the Indemnified Party pursuant to this Section 12.3shall co-operate with the Indemnifying Party in such defense as is reasonably required by the Indemnifying Party. In the event that the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall notify co-operate with the Indemnified Party whether in such defense as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party acknowledges its indemnification obligation and, in without the case of a third party claim, its defense obligation with respect to the claim which was the subject prior written consent of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall Third Party Claims may be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall Party, in each case not to be unreasonably withheld or delayed. At , unless such settlement will not result in (a) any time after the Indemnifying Party acknowledges its obligations hereunder with judgment or finding of liability, guilt or wrongdoing (whether civil, criminal or regulatory) in respect to any third party claim, the Indemnifying Party may request of the Indemnified Party to agree in writing to the Party, (b) any penalty, fine or other payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant)Indemnified Party, andor the imposition of any Lien on, in or any risk of forfeiture of the event the Indemnifying Party does soassets of, the Indemnified Party shall promptly agree in writing to such settlementand (c) any commercial, unless such settlement would involve a remedy legal, regulatory or remedies, other than the payment of money damages by the Indemnifying Party, to which competitive disadvantage for the Indemnified Party reasonably objectsParty.
Appears in 2 contracts
Samples: Purchase Agreement (Fly Leasing LTD), Purchase Agreement (Fly Leasing LTD)
Notice of Claims. Within thirty (30a) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received If an indemnified party reasonably believes that it may incur any Losses hereunder, or receives notice of or has acquired knowledge of any a third-party claim by any Person not a Party for which it intends to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallseek indemnification hereunder, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), it shall give the Indemnifying Party indemnifying party prompt written notice of such claim, specifying the facts and circumstances of the indemnification claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the estimated amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third Losses.
(b) The indemnifying party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to under this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party 6.2 shall have the right to defend such claimconduct and control, with through counsel of its own selectionchoosing but reasonably acceptable to the indemnified party, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third third-party claim, action or suit or compromise or settlement thereof but only so long as prior to assuming the Indemnifying Party shall defend conduct or control of such claims, action or suit, the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged indemnifying party confirms in writing its obligations hereunder with respect to any third the indemnified party that such claim, action or suit is one in respect of which the Indemnified Party indemnifying party is obligated to provide indemnification under this Agreement. The indemnified 40 party may, at its expenseelection, participate in the defense of any such third claim, action or suit through counsel of its own choosing, but the fees and expenses of such counsel shall be at the expense of the indemnified party, unless the indemnified party shall have been advised by such counsel that there are one or more legal defenses available to it that are inconsistent and conflicting with those available to the indemnifying party (in which case, if the indemnified party notifies the indemnifying party in writing that it elects separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the indemnified party with respect to such defenses). If the indemnifying party shall fail to defend promptly and aggressively any such third-party claim, action or suit, then the indemnified party may defend, through counsel of its own choosing, such claim, action or suit and may settle such claim, action or suit and recover from the indemnifying party the amount of such settlement or of any judgment and the costs and expenses of such defense. The obligations of the indemnifying party hereunder shall not be reduced as a result of any action by the party furnishing the notice of third-party claim and no responding to such third claim if such action is reasonably required to minimize damages or to avoid a forfeiture or penalty or to comply with a requirement imposed by law. The indemnifying party claim shall be settled not compromise or settle any third-party claim, action or suit that includes any term which shall require any act or forbearance by the Indemnified Party indemnified party and which does not unconditionally release the indemnified party from all liability in respect of such claim, action or suit without the prior written consent of the Indemnifying Party indemnified party. Acquisition Subsidiary and Stockholders shall cooperate in all reasonable respects with each other in connection with the defense, negotiation or settlement of any legal proceeding, claim or demand referred to in this Section 6.2.
(c) Notwithstanding any of the foregoing:
(i) UT and the Surviving Corporation shall be entitled to control any audit, contest, or proceeding involving Taxes, but shall allow, and shall cause the Subsidiaries to allow, the Stockholders to be present with the Surviving Corporation at all meetings with Tax authorities in respect of audits, and to be present at all other proceedings and hearings with respect to all Tax contests, to the extent such meetings, proceedings or hearings relate to the Tax returns of the Company with respect to periods on or prior to the Closing in respect of which UT or the Acquisition Subsidiary seek indemnification from Stockholders. Stockholders shall also be entitled to make any reasonable written submissions in respect of such Tax audits, proceedings and hearings, provided that all positions taken in such submissions are based upon substantial authority, are made in good faith, and are prepared by counsel of recognized national standing, and further provided that prior to making such submissions, Stockholders shall afford Acquisition Subsidiary reasonable opportunity to review and comment on such submissions. UT and the Surviving Corporation will not settle any such Tax audit, proceeding or contest in a manner that would adversely affect any of the Stockholders without the prior written consent of such Stockholders, which consent shall not be unreasonably withheld, conditioned or delayed. Stockholders' consent shall be deemed to have been given in the event Stockholders fail to respond to and disapprove of the Surviving Corporation's request for consent within 5 Business Days of notice given pursuant to the provisions of Section 7.5.
(ii) Notwithstanding the procedure detailed in Section 6.2(c)(i) above, in the 41 event that UT or the Surviving Corporation has no exposure to potential Taxes and the impact of any Taxes would fall solely on the Stockholders then, in such event, the Stockholders may control any audits, contests or proceedings but shall allow UT and the Surviving Corporation to be present at all meetings with Tax authorities in respect of audits, and to be present at all other proceedings and hearings with respect to all Tax contests, and to receive copies of all correspondence to and from tax authorities, to the extent such meetings, proceedings, hearings or correspondence relate to the Tax returns of the Company. In the event that during the course of Stockholders' control of any audits, contests or proceedings, the Surviving Corporation or UT becomes exposed to potential Taxes and the impact of any Taxes would fall on the Surviving Corporation or UT then, in such event, the Surviving Corporation and UT shall be entitled to immediately control any audit, contest, or proceeding as provided in Section 6.2(c)(i) above.
(iii) Acquisition Subsidiary shall have the right to conduct and control the claims and litigation the subject of indemnification pursuant to Section 6.1(a)(ii) (Designated Claims), subject to the following:
(A) To the extent that the total cumulative Designated Claim Losses are in excess of $250,000, prior to settling such Designated Claims, the Surviving Corporation shall secure the approval of Stockholders of such settlement, which approval shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect Stockholders' approval shall be deemed to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has have been previously approved in writing by the third party claimant), and, given in the event Stockholders fail to respond to and disapprove of the Indemnifying Party does so, Surviving Corporation request for approval within 5 Business Days of notice given pursuant to the Indemnified Party provisions of Section 7.5; and
(B) The Surviving Corporation shall promptly agree in writing continue to such settlement, unless such settlement would involve a remedy or remedies, other than use counsel handling the payment of money damages by Designated Matters reasonably acceptable to the Indemnifying Party, to which the Indemnified Party reasonably objectsStockholders.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of If any claim is made by any Person not or against a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallwhich, if such claim is indemnifiable by sustained, would give rise to a liability of the other Party pursuant hereto to this Article VIII, that Party (hereinafter the “Claiming Party”) will promptly cause notice of the claim to be delivered to the other Party (the “Indemnifying Party”), give ) and will afford the Indemnifying Party written and its counsel, at the Indemnifying Party’s sole expense, the opportunity to defend or settle the claim (and, with respect to claims made by third parties, the Claiming Party will have the right to participate at its sole expense; provided, however, that the Indemnifying Party shall retain the right to control the defense of and settle any such claim). Any notice of such a claim will state, with reasonable specification, the alleged basis for the claim and the commencement amount of liability asserted by or threatened commencement against the other Party by reason of the claim. If such notice is not given, it will not release the Indemnifying Party, in whole or in part, from its obligations under this Article VIII, except to the extent that the Indemnifying Party’s ability to defend against or settle such claim is prejudiced thereby.
(b) If the Indemnifying Party notifies the Claiming Party within ten (10) days from its receipt of notice of the claim (the “Dispute Period”) that the Indemnifying Party desires to defend the Claiming Party with respect to the claim pursuant to this Section 8.05, the Indemnifying Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, such claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Claiming Party (which consent will not be unreasonably withheld, conditioned or delayed) in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that the Claiming Party may, at the sole cost and expense of the Claiming Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (b), file any motion, answer or other pleadings or take any other action that the Claiming Party reasonably believes necessary or proceedingappropriate to protect its interests, if any. Such notice shall state it being acknowledged and agreed that the nature and basis Claiming Party will be solely liable for any Losses arising out of the filing of such claimmotion, andanswer or other pleadings or the taking of such other action; and provided further, that if ascertainablerequested by the Indemnifying Party, the amount thereofClaiming Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any clam that the Indemnifying Party elects to contest. The Claiming Party may retain separate counsel to represent it in, but not control, any defense or settlement of any claim controlled by the Indemnifying Party pursuant to this clause (b), and the Claiming Party will bear its own costs and expenses with respect to such separate counsel. Notwithstanding the foregoing, the failure Claiming Party may, at its sole cost and expense, retain or take over the control of the Indemnified Party to give defense or settlement of any such notice shall not excuse claim the Indemnifying Party’s obligation to indemnify and, in the case defense of a third party claim, defend the Indemnified Party, except to the extent which the Indemnifying Party has suffered damage or prejudice by reason elected to control if the Claiming Party irrevocably waives its right to indemnity under this Agreement with respect to such claim.
(c) If the Indemnifying Party fails to notify the Claiming Party within the Dispute Period that the Indemnifying Party desires to defend the claim pursuant to this Section 8.05, then the Claiming Party will have the right to defend, at the sole cost and expense of the Indemnified Indemnifying Party’s failure to give or delay in giving , such notice. Within ten (10) business days of receipt of any notice issued claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Claiming Party in good faith or will be settled at the discretion of the Claiming Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed). The Claiming Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Claiming Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Claiming Party and its counsel in contesting any such claim which the Claiming Party is contesting. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Claiming Party pursuant to this Section 12.38.05(c), and the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges will bear its indemnification obligation and, in the case of a third party claim, its defense obligation own costs and expenses with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsparticipation.
Appears in 1 contract
Samples: Merger Agreement (Ii-Vi Inc)
Notice of Claims. Within Each Party against whom a claim for indemnity pursuant to this Section 5.3(c) shall have been made (each, an “Indemnifying Party”) shall have the right to defend the Person seeking such indemnity (each, an “Indemnified Party”) with counsel of such Indemnifying Party’s choice in respect of any third party claim, so long as (i) such counsel is reasonably satisfactory to the Indemnified Party, (ii) the Indemnifying Party shall have provided written notice to the Indemnified Party, within thirty (30) days after a Person seeking indemnification hereunder (hereinafter receipt by the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Indemnifying Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a related Claims Notice, indicating that the Indemnifying Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) will indemnify the Indemnified Party shall, if such claim is indemnifiable by in accordance with the other Party pursuant hereto terms of this Section 5.3 and (hereinafter the “Indemnifying Party”), give iii) the Indemnifying Party written notice of such claim and conducts the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure defense of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage claim or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such noticematter actively and diligently. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the The Indemnified Party shall have the right to defend such claim, with retain separate co-counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of any such third party claim or matter; provided that any related attorneys’ fees shall not be indemnifiable Losses unless the Indemnifying Party and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, are both defendants in the event matter for which the Indemnifying Party does so, indemnity is sought and the Indemnified Party shall promptly agree have been advised by counsel representing the Parties that an actual conflict of interest would arise in writing to such settlement, counsel’s continued representation of both Parties. Knowledge by an Indemnified Party of any breach or non-compliance hereunder shall not constitute a waiver of such Indemnified Party’s rights and remedies under this Agreement unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsshall have failed to notify the applicable Indemnifying Party of such breach or non-compliance in a timely manner in accordance with the terms of this Article V. No express or implied waiver by an Indemnified Party of any default hereunder shall in any way be, or be construed to be, a waiver of any other default. The failure or delay of an Indemnified Party to exercise any of its rights granted hereunder regarding any default shall not constitute a waiver of any such right as to any other default, and any single or partial exercise of any particular right granted to an Indemnified Party hereunder shall not exhaust the same or constitute a waiver of any other right provided herein.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after If a Person Covered Party seeking indemnification hereunder receives notice of the assertion of any Claim (hereinafter the a “Indemnified PartyClaim Notice”) has received notice of or has acquired knowledge of any claim by any Person not with respect to which a Party party required to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement provide indemnification hereunder (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the an “Indemnifying Party”)) may be obligated under this Agreement to provide indemnification, such Covered Party will give such Indemnifying Party prompt written notice thereof; provided, however, that the failure of any Covered Party to give such Claim Notice will not relieve any Indemnifying Party of its obligations under this Article IX, except and only to the extent that the Indemnifying Party written notice forfeits rights or defenses by reason of such claim and the commencement failure or threatened commencement of such action or proceeding, if anyis otherwise actually prejudiced thereby. Such notice shall state Claim Notice will describe the nature and basis of such claimClaim in reasonable detail, and, if ascertainablepracticable, will indicate the estimated amount of Damages that have been or may be sustained by such Covered Party.
(b) An Indemnifying Party, at such Indemnifying Party’s own expense (including all legal and other expenses) and through counsel reasonably acceptable to the Covered Party, may elect to defend any Third Party Claim; and if it so elects, it will, within 20 calendar days after receiving notice of such Third Party Claim (or sooner, if the nature of such Third Party Claim so requires), notify the Covered Party of its intent to do so, and such Covered Party will cooperate in the defense of such Third Party Claim; provided, that such notice will include an acknowledgment from the Indemnifying Party that such Indemnifying Party is undertaking and will prosecute the defense of the Claim and confirming that based on the information available as between the Covered Party and such Indemnifying Party, such Indemnifying Party will, subject to the provisions of Section 9.4, be able to pay the full amount of potential Liability in connection with any such Claim (including for the Legal Proceeding and all Legal Proceedings on appeal or other review which counsel for the Covered Party may reasonably consider appropriate); provided, further, such Indemnifying Party will not have the right to defend or direct the defense of such Claim that (i) is asserted directly by or on behalf of a Person that is a supplier or customer of Seller, Buyer or their Affiliates or (ii) seeks an injunction or other equitable relief against the Covered Party. After notice from an Indemnifying Party to a Covered Party of its election to assume the defense of a Third Party Claim, such Indemnifying Party will not be liable to such Covered Party for any legal or other expenses subsequently incurred by such Covered Party in connection with the defense thereof; provided, however, that such Covered Party will have the right to employ one counsel to represent such Covered Party and all other Persons entitled to indemnification in respect of such Claim hereunder if, in the reasonable opinion of counsel to the Covered Party, (y) there are legal defenses available to a Covered Party that are different from or additional to those available to the Indemnifying Party and Indemnifying Party, upon timely receipt of written notice of the same, fail to apply such defenses without reasonable justification, or (z) a conflict of interest between such Covered Party and such Indemnifying Party exists in respect of such Claim which would make representation of the Indemnifying Party and the Covered Party impermissible under applicable standards of professional conduct, and in either of those events the reasonable fees and expenses of one such separate counsel for all Covered Parties will be paid by such Indemnifying Party. If the Indemnifying Party does not notify the Covered Party within such 20 calendar days (or sooner, if the nature of such Third Party Claim so requires), the amount thereofCovered Party will have the right to undertake, at the Indemnifying Party’s cost, risk and expense, the defense, compromise or settlement of the Claim but will not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party will not, except with the consent of the Covered Party, enter into any settlement that is not exclusively monetary and will be paid entirely by the Indemnifying Party and does not include as an unconditional term thereof the giving by the Person or Persons asserting such Claim to all Covered Parties of an unconditional release from all Liability with respect to such Claim or consent to entry of any judgment. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure will not be entitled to give or delay in giving such notice. Within ten (10) business days of receipt of control any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party Claim relating to Taxes of Buyer or Seller for any third party claimTax or accounting period ending on or after the Closing Date and will not be entitled to settle, either administratively or after the Indemnified Party shall have commencement of litigation, any Claim for Taxes which could adversely affect the right to defend such claimLiability of Buyer or Seller for Taxes for any Tax or accounting period (or portion thereof) ending on or after the Closing Date, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, Buyer; in the event the Indemnifying Party does soof a conflict between this Section 9.3(b) and Section 8.2(e), the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsSection 8.2(e) will govern.
Appears in 1 contract
Samples: Asset Purchase Agreement (Scott's Liquid Gold - Inc.)
Notice of Claims. Within thirty (30a) days after a Person Any Indemnitee seeking indemnification hereunder shall give to Indemnitor a notice (hereinafter a "Claim Notice") specifying in reasonable detail the “Indemnified Party”facts giving rise to any Indemnification Claim and shall include in such Claim Notice (if then known) has received notice the amount or the method of or has acquired knowledge computation of any claim by any Person not the amount of such Indemnification Claim, and a Party reference to the provision of this Agreement of the commencement or threatened commencement any agreement, certificate or instrument executed pursuant hereto or in connection herewith upon which such Indemnification Claim is based; PROVIDED, that a Claim Notice in respect of any action at law or proceeding suit in equity by any or against a third Person not a Party as to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) which indemnification will be sought shall be given promptly after the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceedingsuit is commenced; and PROVIDED FURTHER, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the that failure of the Indemnified Party to give such notice shall not excuse relieve the Indemnifying Party’s obligation to indemnify and, in the case Indemnitor of a third party claim, defend the Indemnified Party, its obligations hereunder except to the extent it shall have been prejudiced by such failure.
(b) The Indemntior shall have fifteen days after the Indemnifying Party has suffered damage giving of any Claim Notice pursuant hereto to provide such Indemnitee with notice that it disagrees with the amount or prejudice by reason method of determination set forth in the Claim Notice (the "Disagreement Notice"). If a timely Disagreement Notice is not received or to the extent an item is not objected to in the Disagreement Notice, the Claim Notice shall be deemed to have been accepted and final and binding on the parties, absent manifest error. If the Indemnitor delivers a timely Disagreement Notice, the parties shall resolve such conflict in accordance with the procedures set forth in Section 6.4(c).
(c) If Indemntior shall have provided a Disagreement Notice, the parties will attempt in good faith to agree upon the rights of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation respective parties with respect to each of such claims. If the parties should so agree, a memorandum setting forth such agreement will be prepared and signed by Buyer and the Company. If such claim which was is an Indemnification Claim for Losses incurred by a Buyer Indemnitee, Buyer will retain or distribute the subject of the Indemnified Party’s notice or whether it disclaims such obligationsHoldback Amount and Contingent Consideration as provided therein. In the event the Indemnifying Party disclaims or fails parties shall fail to timely acknowledge its obligations with respect to any claim by reach an agreement within thirty days after the Indemnified Party relating to any third party claimdate on which an Indemnitor provided a Disagreement Notice, the Indemnified Party dispute shall have the right be submitted to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel arbitration in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense provisions of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsSection 9.6.
Appears in 1 contract
Notice of Claims. Within thirty If any of the Persons entitled to be indemnified under this Article VIII (30) days after a Person seeking indemnification hereunder (hereinafter the each an “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party wishes to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does soseek indemnification, the Indemnified Party shall promptly agree so notify the parties from whom indemnification is sought (the “Indemnifying Parties”) in writing writing, describing such Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of such Loss if known, all with reasonable specificity and containing a reference to the provisions of this Agreement, in respect of which such settlementclaim is made. If any Indemnified Party receives written notice of the commencement or the assertion of any claim or the commencement of any action, unless such settlement would involve suit or proceeding (in equity or at law) by a remedy or remedies, other than the payment of money damages by the Indemnifying Party, Third Party with respect to which the Indemnified Party intends to claim any Loss under this Article VIII (a “Third Party Claim”) the Indemnified Party shall promptly provide written notice (the “Third Party Claim Notice”) to the Indemnifying Parties of such claim, action, suit or proceeding, describing the nature, the basis, the amount or estimated amount thereof, if known or reasonably objectscapable of estimation of any other remedy sought thereunder, any relevant time constraints relating thereto, and, to the extent practicable, any other material details pertaining thereto, along with copies of the relevant documents evidencing such Third Party Claim and the basis for indemnification sought. The Third Party Claim Notice must also offer to tender to the Indemnifying Parties the defense of such claim, action, suit or proceeding, subject to satisfaction of the requirements of Section 8.05. A failure by any Indemnified Party to give any notice in a timely manner as required pursuant to this Section 8.04 shall not limit the obligation of the Indemnifying Parties under this Article VIII, except to the extent such Indemnifying Parties are actually and materially prejudiced thereby. Notwithstanding the foregoing, in no event may the Indemnifying Parties assume, maintain control of, or participate in, the defense of any Third Party Claim (a) involving any criminal proceeding, (b) in which any relief other than monetary damages is sought against any Purchaser Indemnified Parties, (c) if Alpine has been advised by counsel that a reasonable likelihood exists of a conflict of interest between one or more Purchaser Indemnified Parties and the Stockholder or any of its Affiliates with respect to the applicable Third Party Claim, or (d) if Alpine reasonably believes that (x) an adverse determination with respect to the applicable Third Party Claim would be detrimental to or injure the Purchaser Indemnified Parties’ reputation or future business prospects, or (y) that the outcome of any Governmental Order or settlement in the matter would adversely affect the Purchaser Indemnified Parties’ Tax Liability or the ability of the Purchaser Indemnified Parties to conduct their business (claims described in clauses (a) through (d) are “Special Claims”).
Appears in 1 contract
Notice of Claims. Within The Indemnified Party shall notify the Indemnifying Party in writing promptly after becoming aware of any Damages which the Indemnified Party shall have determined has given rise to a claim for indemnification under Article IX (provided that no delay on the part of any Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from its obligations hereunder, except to the extent said Indemnifying Party is materially prejudiced by such delay). Such written notice (a “Claim Notice”) shall include an estimate of the Damages, if known, the method of computation thereof and a reference to the specific provisions hereof in respect of which indemnification is sought. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of Damages described in such Claim Notice, or fails to notify the Indemnified Party within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice delivery of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give Claim Notice whether the Indemnifying Party written notice disputes the claim or the estimated amount of Damages described in such Claim Notice, the estimated Damages in the amount specified in the Claim Notice will be conclusively deemed a Liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party Damages to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent . If the Indemnifying Party has suffered damage timely disputed its liability with respect to such claim or prejudice the estimated amount of Damages, the dispute shall be resolved, and the amount, if any, of Damages payable by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claimbe determined, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this SectionArticle IX and Section 10.5. Where the Indemnifying This Section 9.3 does not apply to Third Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsActions.
Appears in 1 contract
Samples: Asset Purchase Agreement (Rocky Mountain Chocolate Factory, Inc.)
Notice of Claims. Within thirty (30) days after The party hereto making a Person seeking indemnification hereunder (hereinafter claim under this Article VIII is referred to as the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party , and the party hereto against whom such claims are asserted under this Article VIII is referred to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter as the “Indemnifying Party”), give . The Indemnified Party shall provide the Indemnifying Party with written notice of any actual or potential Losses in respect of which indemnification may be sought under this Article VIII (a “Claim Notice”) promptly, and in any event within thirty (30) days, after the Indemnified Party becomes aware of such claim Losses. Such Claim Notice shall describe the actual or potential Losses, to the Indemnified Party’s knowledge, in reasonable detail based on the information then reasonably available, shall include copies of all material written evidence thereof and shall indicate the commencement estimated amount, if reasonably practicable, of the Losses that has been or threatened commencement may be sustained by the Indemnified Party. The Indemnifying Party acknowledges that the Indemnified Party may have incomplete knowledge of an action or the associated Losses, or of the facts and circumstances underlying such action or proceedingLosses, if anyat the time that a Claim Notice in connection therewith is delivered to the Indemnifying Party, and that any Claim Notice provided hereunder may reflect such incomplete knowledge. Such notice Any information provided to the Indemnifying Party in connection with a Claim Notice is disclosed solely for purposes of making a claim for indemnification under this Agreement, and no information so disclosed shall state be deemed to be an admission by any Indemnified Party to any third party of any manner whatsoever, including of any violation of law or breach of any agreement. With respect to any documents or information that are protected by the nature and basis of such claimattorney-client privilege, andwork product doctrine, if ascertainableor other privileges, the amount thereof. Notwithstanding the foregoing, the failure of Indemnifying Party shall cooperate in good faith with the Indemnified Party to give preserve the privileged status of any such notice document or information. Without limiting any of the foregoing cooperation obligations of the Indemnifying Party or Indemnified Party, nothing in this Agreement shall be construed to require the waiver of any Fifth Amendment or similar protection or require any action that could reasonably be expected to cause the loss of the attorney-client privilege, work-product doctrine, or other privileges as to any document, information, or communication. Any deficiency in the timeliness of the Claim Notice, or substance of the information or detail conveyed, shall not excuse relieve the Indemnifying Party’s obligation to indemnify and, in the case Party of a third party claim, defend the Indemnified Partyits obligations under this Agreement, except to the extent that the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued been actually prejudiced by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect deficiency and only to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense extent of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsprejudice.
Appears in 1 contract
Samples: Stock Purchase Agreement (A-Mark Precious Metals, Inc.)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter The Company and Cryocon each agree to give prompt written notice to the “Indemnified Party”) has received notice of or has acquired knowledge other of any claim against the party giving notice which might give rise to a claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder it against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant party hereto (hereinafter based upon the “Indemnifying Party”)indemnity provisions contained herein, give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state stating the nature and basis of such claim, and, if ascertainable, the claim and the actual or estimated amount thereof. Notwithstanding the foregoing; provided, the however, that failure of the Indemnified Party to give such notice shall will not excuse affect the Indemnifying Party’s obligation of the indemnifying party to indemnify andprovide indemnification in accordance with the provisions of this Section 10 unless, in the case of a third party claim, defend the Indemnified Party, except and only to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving that, such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third indemnifying party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsis actually prejudiced thereby. In the event that any action, suit or proceeding is brought against any member of the Indemnifying Party disclaims Indemnified Cryocon Group or fails to timely acknowledge its obligations the Indemnified Company Group with respect to which any claim by party hereto may have liability under the Indemnified Party relating to any third party claimindemnification provisions contained herein, the Indemnified Party indemnifying party shall have the right, at its sole cost and expense, to defend such action in the name of or on behalf of the indemnified party and, in connection with any such action, suit or proceeding, the parties hereto agree to render to each other such assistance as may reasonably be required in order to ensure the proper and adequate defense of any such action, suit or proceeding; provided, however, that an indemnified party shall have the right to defend such claimretain its own counsel, with counsel of its own selectionthe fees and expenses to be paid by the indemnifying party, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense if representation of such third indemnified party claim and no such third party claim shall be settled by the Indemnified Party counsel retained by the indemnifying party would be inappropriate because of actual or potential differing interests between such indemnified party and any other party represented by such counsel. Neither party hereto shall make any settlement of any claim which might give rise to liability of the other party under the indemnification provisions contained herein without the prior written consent of the Indemnifying Party such other party, which consent such other party covenants shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectswithheld.
Appears in 1 contract
Samples: Reorganization Agreement (Iso Block Products Usa Inc)
Notice of Claims. Within thirty If any claim is made against a Party which, if sustained, would give rise to a liability of the other hereunder, that latter Party (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified PartyIndemnitee”) has received will promptly cause notice of the claim to be delivered to the former Party (the “Indemnitor”) and will afford the Indemnitor and its counsel, at its sole expense, the opportunity to defend or has acquired knowledge settle the claim (and the Indemnitee will have the right to participate at its sole expense). Any notice of any a claim will state specifically the representation, warranty, covenant or agreement with the alleged basis for the claim, and the amount of liability asserted against the Indemnitor by any Person not a Party to this Agreement reason of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement Indemnitor must promptly acknowledge its indemnification obligation. If such notice and opportunity are not given, or threatened commencement if any claim is compromised or settled without notice to and consent of such action or proceedingthe other, if any. Such notice shall state the nature and basis no liability will be imposed by reason of such claim, and, but if ascertainablenotice is given and the Indemnitor fails to assume the defense of the claim within fifteen (15) days of mailing thereof, the amount thereofclaim may be defended, compromised or settled (except for a claim which does not involve a third party which cannot be settled without the consent of the Indemnitor) by the Indemnitee without the consent of the Indemnitor and the Indemnitor will remain liable under this Article. During such fifteen (15) day period, the Indemnitee will take all steps necessary to protect the interests of itself and the Indemnitor, including the filing of necessary responsive pleadings, the seeking of emergency relief and other action necessary to maintain the status quo, subject to reimbursement from the Indemnitor of its expenses in doing so. Notwithstanding the foregoing, the failure of the Indemnified Party Indemnitee may, upon notice to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify andIndemnitor, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt take control of any notice issued by the Indemnified and all action necessary to (a) prevent its assets from being seized, attached or otherwise encumbered as a result of such third-Party pursuant action and (b) respond to this Section 12.3and control any action requiring immediate response, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation andsuch as prayers for injunctive and other emergency relief, provided that Indemnitee may participate in the case of a third party claim, its such defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its sole cost and expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kleangas Energy Technologies, Inc.)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter Each Party indemnified under the “Indemnified Party”) has received provisions of this Agreement, upon receipt of written notice of any claim, or has acquired knowledge the service of a summons or other initial legal process upon it in any action instituted against it by a Third Party, in respect of any claim by any Person not a for which such Party is entitled to indemnification in accordance with this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallAgreement, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), will promptly give the Indemnifying Party written notice of such claim and claim, or the commencement or threatened commencement of such action action, or proceedingthreat thereof to the Party from whom indemnity will be sought hereunder; provided, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoinghowever, the failure of the Indemnified Party to give provide such notice shall will not excuse relieve the Indemnifying Party’s obligation to indemnify and, in the case indemnifying Party of a third party claim, defend the Indemnified Party, any of its obligations hereunder except to the extent the Indemnifying indemnifying Party has suffered damage or prejudice is materially prejudiced by reason of the Indemnified Party’s failure to give or delay in giving such noticefailure. Within ten (10) business days of receipt of any notice issued by the Indemnified The indemnifying Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of will be entitled at its own selection, and compromise such claim without prejudice expense to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim or action, or, if it will elect, to assume control of such defense, in which event such defense will be conducted by counsel chosen by such indemnifying Party, which counsel may be any counsel reasonably satisfactory to the indemnified Party against whom such claim is asserted, and the indemnified Party will bear all fees and expenses of any additional counsel retained by it. Notwithstanding the immediately preceding sentence, if the named parties in such action (including impleaded parties) include the indemnified and the indemnifying Parties, and the indemnified Party will have been advised by counsel that there may be a conflict between the positions of the indemnifying Party and the indemnified Party in conducting the defense of such action or that there are legal defenses available to such indemnified Party different from or in addition to those available to the indemnifying Party, then counsel for the indemnified Party will be entitled, if the indemnified Party so elects, to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interests of the indemnified Party, at the expense of the indemnifying Party, if it is determined by agreement of the indemnifying Party and the indemnified Party or by a court of competent jurisdiction that the indemnified Party is entitled to indemnification hereunder for the Damages giving rise to such action. If the indemnifying Party elects not to assume the defense of such claim or action, then such indemnifying Party will reimburse such indemnified Party for the reasonable fees and expenses of any counsel retained by it, and will be bound by the results obtained by the indemnified Party in respect of such claim or action if it is determined by agreement of the indemnifying Party and the indemnified Party or by a court of competent jurisdiction that the indemnified Party is entitled to indemnification hereunder for the Damages giving rise to such action; provided, however, that no such third party claim shall or action will be settled by the Indemnified Party without the prior written consent of the Indemnifying Party indemnifying Party, which consent shall will not be unreasonably withheld withheld, conditioned or delayed. At delayed and provided, further, that an indemnified Party that declines to consent to a proposed settlement will not be entitled to be indemnified against, and will be fully responsible for, (i) the amount, if any, by which any time subsequent settlement amount or damages award exceeds the amount of the proposed settlement that was declined, and (ii) all reasonable costs of defense and settlement relating to the period after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing date on which consent to the payment or compromise of such third party claim (provided such payment or compromise proposed the proposed settlement was declined. [*] Certain confidential information contained in this document, marked with an asterisk in brackets, has been previously approved in writing by omitted and filed separately with the third party claimant)Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsas amended.
Appears in 1 contract
Samples: Matrix Commercialization Collaboration Agreement (Orthofix International N V)
Notice of Claims. Within A Person entitled to indemnification under this Article X (an “Indemnified Party”) shall notify the Persons obligated to provide such indemnification under this Article X (the “Indemnifying Party”) in writing promptly after becoming aware following the Closing of any Damages which an Indemnified Party shall have determined has given rise to a claim for indemnification under Article X. Such written notice (a “Claim Notice”) shall include an estimate of the Damages, if known, the method of computation thereof and a reference to the specific provisions of this Agreement in respect of which it seeks indemnification. It is agreed that no delay on the part of any Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from its obligations hereunder, except to the extent said Indemnifying Party is prejudiced by such failure to give notice. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of Damages described in such Claim Notice, or fails to notify the Indemnified Party within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice delivery of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give Claim Notice whether the Indemnifying Party written notice disputes the claim or the estimated amount of Damages described in such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainableClaim Notice, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, estimated Damages in the case of a third party claim, defend amount specified in the Indemnified Party, except ’s Claim Notice (an “Undisputed Indemnity Amount”) will be conclusively deemed a Liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Damages to the extent Indemnified Party. If the Indemnifying Party has suffered damage timely disputed its liability with respect to such claim or prejudice the estimated amount of Damages, the dispute shall be resolved, and the amount, if any, of Damages payable by reason of the Indemnified Party’s failure Indemnifying Party to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3(a “Resolved Indemnity Amount”) shall be determined, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with Section 11.6. The provisions of this Section. Where the Indemnifying Section 10.3 do not apply to Third Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsActions.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement
Notice of Claims. Within (a) Any Buyer Indemnified Party or Seller Indemnified Party (the “Indemnified Party”) seeking indemnification hereunder shall, within the relevant limitation period provided for above, give to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to any claims for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any agreement, document or instrument executed pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; and provided further, that failure to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure.
(b) Indemnitor shall have thirty (30) days after a Person seeking indemnification hereunder the giving of any Claim Notice pursuant hereto to (hereinafter i) agree to the amount or method of determination set forth in the Claim Notice and to pay such amount to such Indemnified Party in immediately available funds or (ii) to provide such Indemnified Party with notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the “Indemnified PartyDispute Notice”). Within fifteen (15) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement days after the giving of the commencement or threatened commencement Dispute Notice, a representative of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnitor and such Indemnified Party shall, if such claim is indemnifiable by shall negotiate in a bona fide attempt to resolve the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsmatter. In the event that the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by controversy is not resolved within thirty (30) days of the Indemnified Party relating to any third party claimgiving of the Dispute Notice, the Indemnified Party parties shall have the right proceed to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsbinding arbitration.
Appears in 1 contract
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.310.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Samples: Non Exclusive License, Marketing and Distribution Agreement (Chembio Diagnostics, Inc.)
Notice of Claims. Within thirty All claims for indemnification hereunder shall be resolved in accordance with the following procedures:
(30i) days after a Person If the party seeking indemnification hereunder (hereinafter the “"Indemnified Party”") has received incurred or reasonably believes that it may incur any Losses, it shall deliver promptly written notice to the indemnifying party (the "Indemnifying Party"), setting forth the nature and amount of the Losses or potential Losses, if possible, and further referencing the sections of this Agreement or in any other document delivered pursuant hereto upon which the claim for indemnification for such Losses is based (a "Claim Notice"). If an Indemnified Party receives notice of or has acquired knowledge of any a third-party claim by any Person not a Party for which it intends to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallseek indemnification hereunder, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), it shall give the Indemnifying Party written notice of such claim and claim, so that the commencement or threatened commencement Indemnifying Party's defense of such action claim under this Agreement may be timely instituted. The failure by an Indemnified Party to provide such written notice shall not constitute a waiver of the Indemnified Party's right to indemnity unless such failure has prejudiced the Indemnifying Party's ability to defend such claim, and then only to the extent of such prejudice.
(ii) If, after receiving a Claim Notice, the Indemnifying Party desires to dispute such claim or proceedingthe amount claimed in the Claim Notice, if anyit shall deliver to the Indemnified Party a written objection to such claim or payment setting forth the basis for disputing such claim or payment. Such notice shall state be delivered within thirty (30) days after the nature and basis date the Claim Notice to which it relates is received by the Indemnifying Party. If no such notice is received within the aforementioned 30-day period, the Indemnified Party shall be entitled to payment for such Losses from the Indemnifying Party within ten (10) days of the end of such 30-day objection period.
(iii) If the Indemnifying Party shall agree that it is responsible for all amounts that may be recovered in connection with a third-party claim, andaction or suit (including waiving any deductible or limit that might otherwise apply under this Section 10.11) the Indemnifying Party shall have the right to conduct and control through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, any third-party claim, action or suit; provided, that the Indemnifying Party (x) demonstrates to the Indemnified Party's reasonable satisfaction that it has the financial ability to mount an appropriate defense of such claim and (y) diligently contests and defends such claim. The Indemnified Party shall be entitled at any time, at its own cost and expense (except that such cost and expense shall be paid by the Indemnifying Party if ascertainablethe Indemnified Party reasonably determines that the Indemnifying Party is not adequately representing or, because of a conflict of interest, may not adequately represent the amount thereofinterests of the Indemnified Party) to participate in such defense and to be represented by attorneys of its choosing. Notwithstanding Except with the foregoing, the failure prior written consent of the Indemnified Party to give such notice shall not excuse the no Indemnifying Party’s obligation to indemnify and, in the case defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a third party claim, defend release from all liability with respect to such claim or litigation.
(iv) In the Indemnified Party, except to the extent event that the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure does not elect to give or delay in giving such notice. Within ten (10) business days of receipt of defend against any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third third-party claim, the Indemnified Party shall have the right to may defend such claim, with counsel of its own selection, and compromise against such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, in such manner as it may deem appropriate and the Indemnifying Party shall defend the same be liable for any legal expenses reasonably incurred in connection with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimsuch defense; provided, however, that the Indemnified Party mayshall not, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party Party, which consent shall not be unreasonably withheld withheld, settle or delayed. At any time after consent to the Indemnifying Party acknowledges its obligations hereunder entry of judgment with respect to any third such third-party claim.
(v) In the event of any claim by a third party, the Indemnifying Party may request parties hereto agree that they will cooperate fully with each other in connection with the Indemnified Party to agree in writing to the payment defense or compromise settlement of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsmatter.
Appears in 1 contract
Samples: Investment Agreement (Motient Corp)
Notice of Claims. Within thirty (30) days Promptly after receipt by a Person seeking indemnification hereunder Serologicals Indemnified Party or a Shareholder Indemnified Party (hereinafter the “collectively referred to as an "Indemnified Party”") has received of notice of or has acquired knowledge by a third party (including any Governmental Entity) of any claim by complaint or the commencement of any Person not a audit, investigation, action or proceeding with respect to which such Indemnified Party may be entitled to this Agreement receive payment from the other Party for any Serologicals Losses or any Shareholder Losses (as the case may be), such Indemnified Party will notify Serologicals or the Shareholder Representative, as the case may be (the "Indemnifying Party"), promptly following the Indemnified Party's receipt of such complaint or of notice of the commencement or threatened commencement of any such audit, investigation, action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”)for indemnification does not arise from a complaint, give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such audit, investigation, action or proceeding, if any. Such notice shall state promptly following the nature and basis Indemnified Party's discovery of such event or occurrence giving rise to the indemnification claim; provided, andhowever, if ascertainable, the amount thereof. Notwithstanding the foregoing, that the failure to so notify the Indemnifying Party will relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party will have the right, upon written notice delivered to the Indemnified Party within fifteen days thereafter, to give assume the defense of such notice shall audit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the audit, investigation, action or proceeding on the terms provided above within such fifteen day period, then such Indemnified Party may employ counsel to represent or defend it in any such audit, investigation, action or proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not excuse be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single audit, investigation, action or proceeding. In any audit, investigation, action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party’s obligation , whichever is not assuming the defense of such action, will have the right to indemnify and, participate in the case of a third party claim, defend such matter and to retain its own counsel at such Party's own expense. The Indemnifying Party or the Indemnified Party, except as the case may be, will at all times use reasonable efforts to the extent keep the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days , as the case may be, reasonably apprised of receipt the status of the defense of any notice issued by matter the Indemnified Party pursuant defense of which they are maintaining and to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, cooperate in the case of a third party claim, its defense obligation good faith with each other with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of any such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsmatter.
Appears in 1 contract
Samples: Earnout and Indemnity Agreement (Serologicals Corp)
Notice of Claims. Within A Person entitled to indemnification under this Article IX X (an “Indemnified Party”) shall notify the Persons obligated to provide such indemnification under this Article IXX (the “Indemnifying Party”) in writing promptly after becoming aware of any Damages which an Indemnified Party shall have determined has given rise to a claim for indemnification under Article IXX. Such written notice (a “Claim Notice”) shall include an estimate of the Damages, if known, the method of computation thereof and a reference to the specific provisions of this Agreement in respect of which it seeks indemnification. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of Damages described in such Claim Notice, or fails to notify the Indemnified Party within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice delivery of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give Claim Notice whether the Indemnifying Party written notice disputes the claim or the estimated amount of Damages described in such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainableClaim Notice, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, estimated Damages in the case of a third party claim, defend amount specified in the Indemnified Party, except ’s Claim Notice (an “Undisputed Indemnity Amount”) will be conclusively deemed a Liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Damages to the extent Indemnified Party. If the Indemnifying Party has suffered damage timely disputed its liability with respect to such claim or prejudice the estimated amount of Damages, the dispute shall be resolved, and the amount, if any, of Damages payable by reason of the Indemnified Party’s failure Indemnifying Party to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3(a “Resolved Indemnity Amount”) shall be determined, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with Section 11.6. The provisions of this Section. Where the Indemnifying Section 10.3 do not apply to Third Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsActions.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter An Indemnified Party shall give prompt written notice to the “Indemnified Party”) has received notice of or has acquired knowledge Indemnifying Party of any claim which might give rise to a claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give against the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if anyunder Article 9. Such notice shall state contain the nature and basis of the claim and the actual or estimated amount thereof; provided, however, that failure to give such claimnotice will not affect the obligation of the Indemnifying Party under Article 9 unless, and, if ascertainableand only to the extent that, the amount thereofIndemnifying Party is actually prejudiced thereby. Notwithstanding In the foregoingevent that any action, suit or proceeding is brought against any Indemnified Party with respect to which the Indemnifying Party may have Liability under Article 9, the failure Indemnifying Party shall, upon written acknowledgment by the Indemnifying Party that such action, suit or proceeding is an indemnifiable Loss for which it is responsible under Article 9 (the “Indemnification Acknowledgment”), have the right, at the cost and expense of the Indemnifying Party, to defend such action, suit or proceeding in the name and on behalf of the Indemnified Party (using counsel satisfactory to give such notice the Indemnified Party); provided, however, that an Indemnified Party shall not excuse have the right to retain its own counsel, with fees and expenses paid by the Indemnifying Party’s obligation to indemnify and, in the case if representation of a third party claim, defend the Indemnified Party, except to the extent Party by counsel retained by the Indemnifying Party has suffered damage would be inappropriate because of actual or prejudice by reason of potential differing interests between the Indemnified Party and the Indemnifying Party’s failure . The Indemnification Acknowledgment shall be delivered by the Indemnifying Party to give or delay in giving such notice. Within the Indemnified Party within ten (10) business days Business Days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject delivery of the Indemnified Party’s notice or whether it disclaims such obligationsof claim described above. In the event If the Indemnifying Party disclaims shall fail to defend any action, suit or fails proceeding, including as a result of its failure to timely acknowledge its obligations with respect to any claim by provide the Indemnified Party relating to any third party claimIndemnification Acknowledgment in accordance herewith, then the Indemnified Party shall have the right to defend such claimaction, with counsel of its own selection, and compromise such claim suit or proceeding without prejudice to its right rights to indemnification hereunderunder Article 9. In the event the Indemnifying Party timely acknowledges its obligations hereunder connection with respect any action, suit or proceeding subject to any third party claimArticle 9, the Indemnifying Party shall defend Company Stockholders, on the same with counsel one hand, and Parent and the Surviving Corporation, on the other hand, agree to render to the other such assistance as may reasonably be required in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect order to any third party claim, the Indemnified Party may, at its expense, participate in the ensure proper and adequate defense of such third party claim action, suit or proceeding (including, without limitation, reasonable access to their respective employees (if required) and no such third party claim shall be settled by relevant books and records). Neither the Indemnified Party Company Stockholders, on the one hand, nor Parent and the Surviving Corporation, on the other hand, shall, without the prior written consent of the Indemnifying Party other, which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment settle or compromise any claim or demand (x) on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the other or any Affiliate thereof or (y) if such settlement or compromise does not include an irrevocable and unconditional release of the other for any Liability arising out of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimantdemand. This Section 9.4 shall not be applicable to claims under Section 9.2(b)(iii), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Samples: Merger Agreement (Ediets Com Inc)
Notice of Claims. Within thirty (30a) An Indemnified Party shall give written notification to the Indemnifying Party of the commencement of any Third Party Action (a "Claim Notice"). Such notification shall be given within twenty (20) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim receipt by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written of notice of such claim Third Party Action, and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such Third Party Action and the commencement amount of the claimed damages; provided, however, that no delay or threatened commencement of such action or proceeding, if any. Such notice shall state failure on the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure part of the Indemnified Party to give such notice shall not excuse in so notifying the Indemnifying Party’s Party shall relieve the Indemnifying Party of any liability or obligation hereunder except to indemnify andthe extent of any damage or liability caused by or arising out of such failure. Within twenty (20) days after delivery of such notification, in the case of a third party claimIndemnifying Party may, defend upon written notice thereof to the Indemnified Party, except assume control of the defense of such Third Party Action with counsel reasonably satisfactory to the extent Indemnified Party; provided, that (i) the Indemnifying Party has suffered damage may only assume control of such defense if (A) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or prejudice by reason other liabilities that may be assessed against the Indemnified Party in connection with such Third Party Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VIII and (B) the Damages reasonably likely to be incurred is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VIII and (ii) the Indemnifying Party may not assume control of the defense of Third Party Action involving criminal liability or in which equitable relief is sought against the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, If the Indemnifying Party shall notify does not, or is not permitted under the Indemnified Party whether terms hereof to, so assume control of the Indemnifying Party acknowledges its indemnification obligation and, in the case defense of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Third Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claimAction, the Indemnified Party shall have the right to defend control such claim, with counsel of defense. The Non-controlling Party may participate in such defense at its own selection, expense. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Action and compromise the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder information as it may have with respect to such Third Party Action (including copies of any third summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the Indemnifying same) and shall otherwise cooperate with and assist the Controlling Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim Third Party Action. The fees and no such third party claim shall be settled by expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 8.04(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed; provided, that the consent of the Indemnified Party shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third Party Action without the prior written consent of the Indemnifying Party Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed. At any time after 49
(b) In order to seek indemnification under this Article VIII, an Indemnified Party shall deliver a Claim Notice to the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claimParty.
(c) Within twenty (20) days after delivery of a Claim Notice, the Indemnifying Party may request shall deliver to the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), anda Response, in the event which the Indemnifying Party does soshall: (i) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case the Response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Claimed Amount, by check or by wire transfer; provided, that if the Indemnified Party is Buyer and is seeking to enforce such claim pursuant to the Escrow Agreement, the Indemnifying Party and the Indemnified Party shall promptly deliver to the Escrow Agent, within three (3) days following the delivery of the Response, a written notice executed by both parties instructing the Escrow Agent to disburse the Claimed Amount to Buyer), (ii) agree that the Indemnified Party is entitled to receive the Agreed Amount (in writing to such settlement, unless such settlement would involve which case the Response shall be accompanied by a remedy or remedies, other than the payment of money damages by the Indemnifying Party, Party to which the Indemnified Party reasonably objectsof the Agreed Amount, by check or by wire transfer) or (iii) dispute that the Indemnified Party is entitled to receive any of the Claimed Amount.
Appears in 1 contract
Notice of Claims. Within Each Party against whom a claim for indemnity pursuant to this Section 5.3(c) shall have been made (each, an “Indemnifying Party”) shall have the right to defend the Person seeking such indemnity (each, an “Indemnified Party”) with counsel of such Indemnifying Party’s choice in respect of any third party claim, so long as (i) such counsel is reasonably satisfactory to the Indemnified Party, (ii) the Indemnifying Party shall have provided written notice to the Indemnified Party, within thirty (30) days after a Person seeking indemnification hereunder (hereinafter receipt by the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Indemnifying Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a related Claims Notice, indicating that the Indemnifying Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) will indemnify the Indemnified Party shall, if such claim is indemnifiable by in accordance with the other Party pursuant hereto terms of this Section 5.3 and (hereinafter the “Indemnifying Party”), give iii) the Indemnifying Party written notice of such claim and conducts the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure defense of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage claim or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such noticematter actively and diligently. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the The Indemnified Party shall have the right to defend such claim, with retain separate co-counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of any such third party claim or matter; provided that any related attorneys’ fees shall not be indemnifiable Losses unless the Indemnifying Party and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, are both defendants in the event matter for which the Indemnifying Party does so, indemnity is sought and the Indemnified Party shall promptly agree have been advised by counsel representing the Parties an actual conflict of interest would arise in writing to such settlement, counsel’s continued representation of both Parties. Knowledge by an Indemnified Party of any breach or non-compliance hereunder shall not constitute a waiver of such Indemnified Party’s rights and remedies under this Agreement unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsshall have failed to notify the applicable Indemnifying Party of such breach or non-compliance in a timely manner in accordance with the terms of this Article V. No express or implied waiver by an Indemnified Party of any default hereunder shall in any way be, or be construed to be, a waiver of any other default. The failure or delay of an Indemnified Party to exercise any of its rights granted hereunder regarding any default shall not constitute a waiver of any such right as to any other default, and any single or partial exercise of any particular right granted to an Indemnified Party hereunder shall not exhaust the same or constitute a waiver of any other right provided herein.
Appears in 1 contract
Notice of Claims. Within All claims for indemnification under this Agreement shall be resolved in accordance with the following procedures:
(a) If an indemnified party reasonably believes that it may incur any Losses, it shall deliver a Claim Notice to the indemnifying party for such Losses. If an indemnified party receives notice of a third-party claim for which it intends to seek indemnification hereunder, it shall give the indemnifying party prompt written notice of such claim, so that the indemnifying party's defense of such claim under Section 7.4 hereunder may be timely instituted. The failure to give any notice required by this Section 7.3(a) shall not relieve the indemnifying party of any obligations contained in this Article VII, except to the extent the failure to give such notice actually prejudices the rights of the indemnifying party.
(b) When Losses are actually incurred or paid by an indemnified party or on an indemnified party's behalf or otherwise fixed or determined, the indemnified party shall deliver a Payment Certificate to the indemnifying party for such Losses. If a Claim Notice or Payment Certificate refers to any Proceeding made or brought by a third party, the Claim Notice or Payment Certificate shall include copies of the claim, any process served, and all legal proceedings with respect thereto.
(c) If, after receiving a Payment Certificate, the indemnifying party desires to dispute such claim or the amount claimed in the Payment Certificate, it shall deliver to the indemnified party a Counternotice as to such claim or amount. Such Counternotice shall be delivered within thirty (30) days after the date the Payment Certificate to which it relates is received by the indemnifying party. If no such Counternotice is received within the aforementioned thirty (30) day period, the indemnified party shall be entitled to prompt payment for such Losses from the indemnifying party.
(d) If, within thirty (30) days after receipt by the indemnified party of the Counternotice to a Person seeking Payment Certificate, the parties have not reached agreement as to the claim or amount in question, the claim for indemnification hereunder shall be decided in accordance with the provisions of Section 8.6.
(hereinafter the “Indemnified Party”e) has received notice of With respect to any Losses for which indemnification is being claimed based upon an asserted liability or has acquired knowledge of any claim by any Person obligation to a person or entity not a Party party to this Agreement Agreement, the obligations of the commencement or threatened commencement indemnifying party hereunder shall not be reduced as a result of any action or proceeding by any Person not a Party the indemnified party in responding to this Agreement (“third party claim”) or has acquired knowledge of any other such claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim action is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”)reasonably required to minimize damages, give the Indemnifying Party written notice of such claim and the commencement avoid a forfeiture or threatened commencement of such action penalty, or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of comply with a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectslegal requirement.
Appears in 1 contract
Samples: Recapitalization and Stock Purchase Agreement (TTM Technologies Inc)
Notice of Claims. Within An Indemnified Party shall notify the Indemnifying Party within a reasonable period of time after becoming aware of any Damages which the Indemnified Party shall have determined has given or could give rise to a claim for indemnification under Section 9.1 hereof. Such notice shall include an estimate of the Damages that the Indemnified Party has determined may be incurred. As soon as practicable after the date of such notice, the Indemnified Party shall provide to the Indemnifying Party all information and documentation necessary to support and verify the Damages so claimed and the Indemnifying Party and its agents shall be given access to all books and records in the possession or control of the Indemnified Party which the Indemnifying Party reasonably determines to be related to such claim. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of Damages described in such notice, or fails to notify the Indemnified Party within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice delivery of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to disputes the claim which was or the subject estimated amount of the Indemnified Party’s notice or whether it disclaims Damages described in such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claimnotice, the Indemnified Party shall have the right to defend such contest, settle or compromise the claim, with counsel but only for the payment of money damages, in the exercise of its own selectionreasonable discretion; provided, and compromise such claim without prejudice to its right to indemnification hereunder. In however, that the event Indemnified Party shall notify the Indemnifying Party timely acknowledges its obligations hereunder with respect of any compromise or settlement of any such claim and the amount of Damages (which shall only be for the payment of money damages) to any third party claimbe paid under such compromise or settle- ment, which amount the Indemnifying Party shall defend pay to the same with counsel in accordance with this SectionIndemnified Party. Where the The Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect not agree to any third party claimsettlement or the entry of a judgment in any action, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party suit or proceeding without the prior written consent of the Indemnifying Party Indemnified Party, which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect (it being understood that it is reasonable to any third party claimwithhold such consent if, among other things, the Indemnifying Party may request settlement or the entry of a judgment (A) lacks a complete release of the Indemnified Party to agree in writing to the payment for all liability with respect thereto or compromise of such third party claim (provided such payment B) imposes any liability or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, obligation on the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects).
Appears in 1 contract
Samples: Merger Agreement (L90 Inc)
Notice of Claims. Within thirty (30) days after The parties agree that in case any claim is made, any suit or action is commenced, or any knowledge is received of a Person seeking state of facts which, if not corrected, may give rise to a right of indemnification for such party hereunder (hereinafter the “"Indemnified Party”") has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of from the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement other party (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) "Indemnifying Party"), the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), will give written notice to the Indemnifying Party written as promptly as practicable after the receipt by the Indemnified Party of notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis knowledge of such claim, andsuit, if ascertainableaction or state of facts. Except as provided in Section 7.05(d), notice to the amount thereof. Notwithstanding Indemnifying Party under the foregoing, the failure of preceding sentence shall be given no later than 15 days after receipt by the Indemnified Party of service of process in the event a suit or action has commenced or 30 days under all other circumstances. The failure to give such prompt notice shall not excuse the relieve an Indemnifying Party’s Party of its obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice is prejudiced by reason such failure. The Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any such possible claim for indemnification, and each party hereunder will render to the other such assistance, at the expense of the Indemnifying Party’s failure , as it may reasonably require of the other in order to give or delay in giving such notice. Within ten (10) business days of receipt insure prompt and adequate defense of any notice issued by suit, claim or proceeding based upon a state of facts which may give rise to a right of indemnification hereunder. The Indemnifying Party shall have the obligation to defend, and may, subject to Section 7.05(b), compromise and settle any third-party suit, claim or proceeding in the name of the Indemnified Party pursuant to this Section 12.3, the extent that the Indemnifying Party may be liable to the Indemnified Party in connection therewith. The Indemnifying Party shall notify the Indemnified Party whether within 15 days of having been notified pursuant to this Section 7.05(a) of its assumption of the Indemnifying Party acknowledges its indemnification obligation and, in the case defense of a third party any such claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice suit or whether it disclaims such obligationsproceeding and counsel employed. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the The Indemnified Party shall have the right to defend such claim, with counsel of employ its own selection, counsel but the fees and compromise expenses of such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party counsel shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, be at the Indemnified Party may, at its Party's expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Samples: Deposit Accounts Purchase and Assumption Agreement (Metris Companies Inc)
Notice of Claims. Within A Person entitled to indemnification under this Article 10 (an “Indemnified Party”) shall notify the Persons obligated to provide such indemnification under this Article 10 (the “Indemnifying Party”) in writing promptly after becoming aware of any Damages which an Indemnified Party shall have determined has given rise to a claim for indemnification under this Article 10. Such written notice (a “Claim Notice”) shall include an estimate of the Damages, if known, the method of computation thereof and a reference to the specific provisions of this Agreement in respect of which it seeks indemnification. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of Damages described in such Claim Notice, or fails to notify the Indemnified Party within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice receipt of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give Claim Notice whether the Indemnifying Party written notice disputes the claim or the estimated amount of Damages described in such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainableClaim Notice, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, estimated Damages in the case of a third party claim, defend amount specified in the Indemnified Party, except ’s Claim Notice will be conclusively deemed a Liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Damages to the extent Indemnified Party. If the Indemnifying Party has suffered damage timely disputed its liability with respect to such claim or prejudice the estimated amount of Damages, the dispute shall be resolved, and the amount, if any, of Damages payable by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claimbe determined, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with Section 12.6. The provisions of this Section. Where the Indemnifying Section 10.3 do not apply to Third Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsActions.
Appears in 1 contract
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter ASSUMPTION OF DEFENSE The indemnified party shall give prompt notice to the “Indemnified Party”) has received notice indemnifying party in accordance with the terms of or has acquired knowledge Section 10.3 of the assertion of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or suit proceeding by any Person not a Party to this Agreement party in respect of which indemnity may be sought hereunder, specifying with reasonable particularity the basis therefore and giving the indemnifying party such information with respect thereto as the indemnifying party may reasonably request (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) but the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice giving of such claim notice shall not be conditioned precedent to indemnification hereunder). The indemnifying party may, at its own expense:
(a) participate in; and
(b) upon notice to the indemnified party and the commencement indemnifying party's written agreement that the indemnified party is entitled to indemnification pursuant to Section 8.2 or threatened commencement Section 8.3 for Losses arising out of such claim, suit, action or proceeding, if any. Such notice shall state at any time during the nature and basis course of any such claim, suit, action or proceeding, assume the defense thereof; provided that:
(i) the indemnifying party's counsel is reasonably satisfactory to the indemnified party;
(ii) the indemnifying party shall thereafter consult with the indemnified party upon the indemnified party's reasonable request for consultation from time to time with respect to such claim, suit, action or proceeding; and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and,
(iii) in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason claim arising from a breach of the Indemnified Party’s failure to give or delay warranties contained in giving such notice. Within ten (10) business days of receipt of any notice issued by Section 3.9 hereof for which the Indemnified Party Vendor and Clearview have, pursuant to this Section 12.3section 8.4 assumed the defense thereof, if the Indemnifying Party action of the Vendor and Clearview may adversely affect the Purchaser or Clearview tax obligations for periods ending after the Closing Date, none of the Vendor or Clearview shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation andenter into a settlement agreement, in the case file and amended tax return or seek a refund of a third party claim, its defense obligation Taxes with respect to the claim which was the subject operations of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party Clearview without the prior written consent of the Indemnifying Party Purchaser, which consent shall not be unreasonably withheld withheld. If the indemnifying party assumes such defense, the indemnified party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party. Whether or delayed. At not the indemnifying party chooses to defend or prosecute any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party such claim, suit, action or proceeding, all of the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, Parties hereto shall cooperate in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy defense or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsprosecution thereof.
Appears in 1 contract
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter An Indemnified Party shall give prompt written notice to the “Indemnified Party”) has received notice of or has acquired knowledge Indemnifying Party of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such which might give rise to a claim is indemnifiable by the other Indemnified Party pursuant hereto (hereinafter the “Indemnifying Party”), give against the Indemnifying Party written notice of such claim and under the commencement or threatened commencement of such action or proceedingindemnification provisions contained herein, if any. Such notice shall state stating the nature and basis of the claim and the actual or estimated amount thereof, provided, however, that failure to give such claimnotice will not affect the obligation of the Indemnifying Party to provide indemnification in accordance with the terms of Section 8.2 unless, and, if ascertainableand only to the extent that, the amount thereofIndemnifying Party is actually prejudiced thereby. Notwithstanding In the foregoingevent that any action, suit or proceeding is brought against any Indemnified Party with respect to which the Indemnifying Party may have liability under the indemnification provisions contained herein, the failure Indemnifying Party shall, upon written acknowledgment by the Indemnifying Party that such action, suit or proceeding is an indemnifiable Loss pursuant to Section 8.2, have the right, at the cost and expense of the Indemnifying Party, to defend such action in the name and on behalf of the Indemnified Party (using counsel reasonably satisfactory to give the Indemnified Party), and, in connection with any such notice action, the Indemnified Party and the Indemnifying Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action; provided, however, that an Indemnified Party shall not excuse have the right to retain its own counsel, with reasonable fees and expenses paid by the Indemnifying Party’s obligation to indemnify and, in the case if representation of a third party claim, defend the such Indemnified Party, except to the extent Party by counsel retained by the Indemnifying Party has suffered damage would be inappropriate because of actual or prejudice by reason of the Indemnified Party’s failure to give or delay in giving potential differing interests between such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, and the Indemnifying Party. If the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation andfail to defend such action, in the case of a third party claimsuit or proceeding, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, then the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim action without prejudice to its right rights to indemnification hereunder. In under Section 8.2 and, in connection therewith, the event Indemnified Party and the Indemnifying Party timely acknowledges its obligations hereunder with respect agree to any third party claim, render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action. Neither the Indemnified Party nor the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to make any third party claim, the Indemnified Party may, at its expense, participate in the defense settlement of such third party any claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party other party, which consent shall not be unreasonably withheld withheld, delayed or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsconditioned.
Appears in 1 contract
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of Should any claim be made against WHI or the Surviving Corporation by any Person a person not a Party party to this Agreement with respect to any matter to which indemnity of any of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallShareholders set forth in Article VIII applies, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), then WHI shall promptly give the Indemnifying Party Shareholders written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of any such claim, and, if ascertainablesubject to this Article VIII, such Shareholders shall thereafter have the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party option to give defend or settle any such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, at their sole expense, on their own behalf and with counsel of their own choosing, which counsel shall be reasonably satisfactory to WHI. If the Shareholders fail to, or elect not to defend any such claim, WHI shall defend such claim; provided, however, that the Indemnified PartyShareholders' consent shall be required for any settlement payment, except to the extent the Indemnifying Party has suffered damage which consent will not be unreasonably withheld. In such defense or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt settlement of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party non-defending party shall have cooperate with and assist the right parties to defend the maximum extent reasonably possible and may participate therein (at such claim, party's expense) with counsel of its such party's own selectioncounsel, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect party's written consent shall be a requirement to any third party claimsettlement or disposition thereof, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld withheld. Notwithstanding anything to the contrary contained herein, if the Shareholders shall not consent to a settlement recommended by WHI, the Shareholders shall be liable for any indemnification amount in excess of the recommended settlement payment arising from the final resolution of the proceedings plus any additional defense costs incurred by WHI subsequent to the recommended settlement. Any payment resulting from such defense or delayedsettlement, together with the total expense thereof, shall be binding on the parties for the purposes of this Article VIII. At any Subject to the limits for claims in SECTION 8.1, failure to give notice within a reasonable period of time after the Indemnifying Party acknowledges its obligations hereunder with respect shall not constitute a defense, in whole or in part, to any third party claimclaim for indemnification by WHI, the Indemnifying Party may request the Indemnified Party to agree in writing except only to the payment extent that such failure by WHI or compromise of such third party claim (provided such payment or compromise has been previously approved the Surviving Corporation shall result in writing by a material prejudice to the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsShareholders.
Appears in 1 contract
Samples: Merger Agreement (Whittman Hart Inc)
Notice of Claims. Within thirty (30) days after a Person Any Party seeking to be indemnified under this Article 8 shall give the other Party from which indemnification hereunder (hereinafter the “Indemnified Party”) has received is sought reasonable written notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement or suit coming within the purview of the commencement or threatened commencement indemnities set forth in this Article 8. The indemnifying Party will assume the defense of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, anddemand, if ascertainableor action against an indemnified party and will, upon the amount thereof. Notwithstanding request and at the foregoing, the failure expense of the Indemnified Party indemnified party, allow such indemnified party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense thereof. An indemnified party shall cooperate fully with the indemnifying Party in the defense and will provide, at the indemnifying Party’s expense, all relevant documents, witnesses, and other- assistance within its possession or control upon the reasonable request of such third the indemnifying Party. An indemnified party shall not take any action that could materially interfere with, jeopardize, or adversely affect any defense against an indemnified claim and no such third party claim shall be settled by the Indemnified hereunder. An indemnifying Party may not settle an indemnified claim, demand, or action without the prior written consent of the Indemnifying Party indemnified party (which consent shall not be unreasonably withheld or delayedwithheld). At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party Settlement of an indemnified claim, demand, or action by an indemnified party without the Indemnifying prior written consent of the indemnifying Party may request (which consent shall not be unreasonably withheld) shall serve to release the Indemnified indemnifying Party from any liability for such settled claim, demand, or action. It shall not be unreasonable for an indemnifying Party to agree in writing withhold consent from a proposed settlement if the settlement contains any admission of liability on the part of the indemnifying Party, provides for any remedy that is to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing be satisfied by the third party claimant), and, in the event the Indemnifying indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages cash or, in the reasonable judgment of the indemnifying Party, creates a precedent that is likely to have a material adverse effect on the indemnifying Party as a result of similar or related causes of action that are pending or threatened. It shall not be unreasonable for an indemnified party to withhold consent from a proposed settlement if the settlement contains any admission of liability on the part of the indemnified party, provides for any remedy that is to be satisfied by the Indemnifying Partyindemnified party other than the payment of cash that the indemnifying Party is prepared to and able to pay, or, in the reasonable judgment of the indemnified party, creates a precedent that is likely to which have a material adverse effect on the Indemnified Party reasonably objectsindemnified party as a result of similar or related causes of action that are pending or threatened.
Appears in 1 contract
Samples: Naming Rights and Marketing Agreement (Seaport Entertainment Group Inc.)
Notice of Claims. Within thirty (30) days after a Person Any party seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any Indemnifiable Loss or potential Indemnifiable Loss arising from an Indemnifiable Claim, whether asserted by a party or a third party, shall give written notice thereof to the party from whom indemnifica- tion is sought setting forth in reasonable detail the nature and reasonably estimated amount of, and basis for, such claim by any Person not a to the extent then known. Written notice to the Indemnifying Party to this Agreement of the commencement or threatened commencement existence of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) shall be given by the Indemnified Party shallpromptly after its receipt of an assertion of liability from the third party, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice and in any event within twenty days of such claim and the commencement or threatened commencement of such action or proceedingassertion; provided, if any. Such notice shall state the nature and basis of such claimhowever, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the that failure of the Indemnified Party to give such notice shall not excuse relieve the Indemnifying Party’s obligation to indemnify and, in the case Party of a third party claim, defend the Indemnified Party, its obligations hereunder except to the extent the Indemnifying Party has suffered damage or prejudice it shall have been prejudiced by reason of the Indemnified Party’s failure to give or delay in giving such noticefailure. Within ten (10) business 20 days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3of any Indemnifiable Loss or potential Indemnifiable Loss arising from an Indemnifiable Claim, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party or not it acknowledges its indemnification obligation and, in ob- ligation to indemnify the case of a third party claim, its defense obligation Indemnified Party for the Indemnifiable Loss or potential Indemni- fiable Loss with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsIndemnifiable Claim. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent The failure of the Indemnifying Party which consent to respond in accordance with the preceding sentence shall not be unreasonably withheld or delayed. At any time after deemed a refusal by the Indemnifying In- demnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request indemnify the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Samples: Stock Purchase Agreement
Notice of Claims. Within (i) If an indemnified party reasonably believes that it has incurred or may incur any Losses, it shall deliver a Claim Notice to the indemnifying party with respect to such Losses. The failure to give such notice shall not affect the rights of the indemnified party or parties except to the extent that the indemnifying party is materially prejudiced by such failure.
(ii) When Losses are actually incurred or paid by an indemnified party or on an indemnified party's behalf or otherwise fixed or determined, the indemnified party shall deliver a Payment Certificate to the indemnifying party for such Losses.
(iii) If, after receiving a Payment Certificate, the indemnifying party desires to dispute such claim or the amount claimed in the Payment Certificate, it shall deliver to the indemnified party within thirty (30) days a Counternotice as to such claim or amount. If no such Counternotice is received within the aforementioned thirty (30) day period, the indemnifying party shall be deemed to have accepted liability in respect of the Payment Certificate.
(iv) The parties will use good faith efforts for a thirty (30) day period in an effort to resolve the issue. If, however, within thirty (30) days after receipt or deemed receipt by the indemnified party of the Counternotice to a Payment Certificate, the parties have not reached agreement as to the claim or amount in question, the claim for indemnification shall be decided in accordance with the provisions of Section 10.3(b), unless otherwise specified in this Agreement.
(v) With respect to any Losses for which indemnification is being claimed based upon an asserted liability or obligation to a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person entity not a Party party to this Agreement Agreement, the obligations of the commencement or threatened commencement indemnifying party hereunder shall not be reduced as a result of any action or proceeding by any Person not a Party the indemnified party in responding to this Agreement (“third party claim”) or has acquired knowledge of any other such claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim action is indemnifiable by the other Party pursuant hereto reasonably required to minimize damages, avoid a forfeiture or penalty, or comply with a legal requirement.
(hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice vi) For purposes of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.310.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third Company Shareholders who is an indemnifying party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by deemed to have received notice for purposes of this Article X, once the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld Shareholders' Representatives have all received a Claim Notice or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claimPayment Certificate, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsas applicable.
Appears in 1 contract
Samples: Merger Agreement (Itron Inc /Wa/)
Notice of Claims. Within If either (i) a claim is made by a third party against any Indemnitee (as defined in Section 11.1 or 11.2 hereof) and if such Indemnitee believes that such claim, if successful, would give rise to a night of setoff or indemnification under this Article XI (collectively, "Indemnifying Parties" and each individually, an "Indemnifying Party"), or (ii) an Indemnitee becomes aware of facts or circumstances establishing that an Indemnitee has experienced or incurred Damages or will experience or incur Damages which will give rise to a right of setoff or indemnification under this Article XI, then such Indemnitee shall give written notice to the Indemnifying Party of such claim ("Indemnification Notice") as soon as reasonably practicable but in no event more than thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) Indemnitee has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement actual knowledge of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the claims (provided that failure of the Indemnified Party to give such notice shall not excuse limit the Indemnifying Party’s 's indemnification obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, hereunder except to the extent that the delay in giving, or failure to give, the notice adversely affects the Indemnifying Party's ability to defend against the claim). To the extent reasonably practicable, the Indemnification Notice will describe the nature, basis and amount of the indemnification claim and include any relevant supporting documentation. If the Indemnifying Party has suffered damage or prejudice by reason does not object within thirty (30) days after receipt of the Indemnified Party’s failure Indemnification Notice to give or delay in giving such notice. Within ten the propriety of (10i) business days of receipt of any notice issued by the Indemnified Party indemnification claims described on the Indemnification Notice as being subject to indemnification pursuant to this Section 12.311.1 or 11.2 and (ii) the amount of Damages specified in the Indemnification Notice, the indemnification claims described in the Indemnification Notice shall be deemed to be final and binding upon the Indemnifying Party(ies) (hereinafter, "Permitted Indemnification Claim"). If the Indemnifying Party contests the propriety of an indemnification claim described on the Indemnification Notice and/or the amount of Damages alleged to be associated with such claim, then the Indemnifying Party shall notify deliver to the Indemnified Party whether Indemnitee an Indemnification Objection Notice detailing all specific objections of the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation Indemnitee has with respect to the claim which was indemnification claims contained in the subject of the Indemnified Party’s notice or whether it disclaims such obligationsIndemnification Notice. In the event If the Indemnifying Party disclaims or fails and the Indemnitee are unable to timely acknowledge its obligations with respect to any claim by resolve the Indemnified Party relating to any third party claim, disputed issues concerning the Indemnified Party shall have indemnification claims within fifteen (15) business days after the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event date the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claimreceived the Indemnification Objection Notice, the Indemnifying Party disputed issues will be resolved pursuant to the dispute resolution procedures set forth in Section 11.15 hereof. Any undisputed indemnification claims contained in the Indemnification Notice shall defend the same with counsel in accordance with this Section. Where be deemed to be final and binding upon the Indemnifying Party Party(ies) and shall have acknowledged constitute a Permitted Indemnification Claim. If any disputed issues ultimately are resolved by an arbitrator pursuant to Section 11.15, and if the arbitrator's determination of the disputed issues results in writing its obligations hereunder with respect all or any portion of an indemnification claim properly being subject to any third party claimindemnification pursuant to Section 11.1 or 11.2, the Indemnified Party may, at its expense, participate in the defense of such third party indemnification claim and no such third party claim or portion thereof shall be settled by the Indemnified Party without the prior written consent of final and binding upon the Indemnifying Party which consent Party(ies) and shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve constitute a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsPermitted Indemnification Claim.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Si Diamond Technology Inc)
Notice of Claims. Within If any claim is made against a party which, if sustained, would give rise to a liability of the other hereunder, that latter party (the “Indemnitee”) shall promptly cause notice of the claim to be delivered to the former party (the “Indemnitor”) and shall afford the Indemnitor and its counsel, at its sole expense, the opportunity to defend or settle the claim (and the Indemnitee shall have the right to participate at its sole expense). Any notice of a claim shall state specifically the representation, warranty, covenant or agreement with the alleged basis for the claim, and the amount of liability asserted against the Indemnitor by reason of the claim and the Indemnitor must promptly acknowledge its indemnification obligation. If such notice and opportunity are not given, or if any claim is compromised or settled without notice to and consent of the other, no liability shall be imposed by reason of such claim, but if notice is given and the Indemnitor fails to assume the defense of the claim within fifteen (15) days of mailing thereof, the claim may be defended, compromised or settled (except for a claim which does not involve a third party which cannot be settled without the consent of the Indemnitor) by the Indemnitee without the consent of the Indemnitor and the Indemnitor shall remain liable under this Article 8. During such fifteen (15) day period, the Indemnitee shall take all steps necessary to protect the interests of itself and the Indemnitor, including the filing of necessary responsive pleadings, the seeking of emergency relief and other action necessary to maintain the status quo, subject to reimbursement from the Indemnitor of its expenses in doing so. Notwithstanding the foregoing, the Indemnitee may, upon notice to Indemnitor, take control of any and all action necessary to (i) prevent its assets from being seized, attached or otherwise encumbered as a result of such third-party action and (ii) respond to and control any action requiring immediate response, such as prayers for injunctive and other emergency relief, provided that Indemnitee may participate in such defense at its sole cost and expense. The parties shall cooperate at all times in reasonable requests for documents, testimony and other forms of assistance in connection with any claim pursuant to this Section 8.3. Indemnitor shall not in the defense of any such claim consent to the entry of any judgment against or affecting the Indemnitee (other than a judgment or a dismissal on the merits and without costs) except for the written consent of the Indemnitee, or enter into any settlement (except with the written consent of the Indemnitee) which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a full release in respect to such claim. If the claim does not arise from the claim or demand of a third party, the Indemnitor shall have thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement receipt of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect object to the claim which was by giving written notice to the subject of Indemnitee specifying the Indemnified Party’s notice reasons for such objection or whether it disclaims such obligationsobjections. In If the event Indemnitor does not so object to the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have total amount of the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled promptly paid by the Indemnified Party without Indemnitor. If the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing Indemnitor objects to the payment claim and the parties are unable to settle any such dispute, then the parties shall have all rights and remedies at law or compromise of in equity, and either the Indemnitor or the Indemnitee may commence an action or proceeding to resolve such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsdispute.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Aluf Holdings, Inc.)
Notice of Claims. Within thirty (30a) days after a Person Any Acquisition Sub Indemnified Party or Shareholder Indemnified Party (the "Indemnified Party") seeking indemnification hereunder shall, within the relevant limitation period provided for in Section 9.1 above, give to the party obligated to provide indemnification (hereinafter the “"Indemnitor") to such Indemnified Party”Party a notice (a "Claim Notice") has received notice describing in reasonable detail the facts giving rise to any claims for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of or has acquired knowledge of any claim by any Person not a Party to this Agreement computation of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis amount of such claim, andand a reference to the provision of this Agreement or any agreement, if ascertainablecertificate or instrument executed pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the amount thereof. Notwithstanding the foregoingaction or suit is commenced; and provided further, the that failure of the Indemnified Party to give such notice shall not excuse relieve the Indemnifying Party’s obligation to indemnify and, in the case Indemnitor of a third party claim, defend the Indemnified Party, its obligations hereunder except to the extent it shall have been prejudiced by such failure.
(b) Indemnitor shall have thirty days after the Indemnifying giving of any Claim Notice pursuant hereto to (i) agree to the amount or method of determination set forth in the Claim Notice and to pay such amount to such Indemnified Party has suffered damage in immediately available funds or prejudice by reason (ii) to provide such Indemnified Party with notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the "Dispute Notice"). Within fifteen days after the giving of the Indemnified Party’s failure to give or delay in giving Dispute Notice, a representative of Indemnitor and such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant shall negotiate in a bona fide attempt to this Section 12.3, resolve the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsmatter. In the event that the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by controversy is not resolved within thirty days of the Indemnified Party relating to any third party claimgiving of the Dispute Notice, the Indemnified Party parties shall have the right proceed to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing binding arbitration pursuant to the payment or compromise following procedures:
(1) Any party may send another party written notice identifying the matter in dispute and invoking the procedures of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsthis Section 9.
Appears in 1 contract
Notice of Claims. Within All claims for indemnification hereunder shall be resolved in accordance with the following procedures:
(a) If Buyer or Seller, as appropriate, has incurred or reasonably believes that it may incur any Indemnified Loss (the "Indemnified Party"), it shall deliver promptly written notice to the other (the "Indemnifying Party") setting forth in reasonable detail the nature and amount of the Indemnified Loss or potential Indemnified Loss, if possible, and further referencing the sections of this Agreement upon which the claim for indemnification for such Indemnified Loss is based (a "Claim Notice"). If an Indemnified Party receives notice of a third-party claim for which it intends to seek indemnification hereunder, it shall give the Indemnifying Party prompt written notice of such claim, so that the Indemnifying Party's defense of such claim under Section 11.4 hereof may be timely instituted. The failure by an Indemnified Party to provide such written notice shall not constitute a waiver of the Indemnified Party's right to indemnity unless such failure has resulted in the loss of substantive rights with respect to the Indemnifying Party's ability to defend such claim, and then only to the extent of such loss.
(b) If, after receiving a Claim Notice for an Indemnified Loss, the Indemnifying Party desires to dispute such claim or the amount claimed in the Claim Notice, it shall deliver to the Indemnified Party a written objection to such claim or payment setting forth the basis for disputing such claim or payment. Such notice shall be delivered within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has date the Claim Notice to which it relates is received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in . If no such notice is received within the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claimaforementioned 30-day period, the Indemnified Party shall have the right be entitled to defend payment for such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event Indemnified Loss from the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, within ten (10) days of the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense end of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim30-day objection period, the Indemnifying Party may request the Indemnified Party to agree in writing subject to the payment or compromise limitations of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsSection 11.7 hereof.
Appears in 1 contract
Notice of Claims. Within All claims for indemnification under this Agreement, other than Third Party Claims as described in Section 10.4, shall be resolved in accordance with the following procedures:
(a) If an indemnified party reasonably believes that it has incurred or may incur any Losses, it shall deliver a Claim Notice to the indemnifying party for such Losses.
(b) When Losses are actually incurred or paid by an indemnified party or on an indemnified party's behalf or otherwise fixed or determined, the indemnified party shall deliver a Payment Certificate to the indemnifying party for such Losses.
(c) If, after receiving a Payment Certificate, the indemnifying party desires to dispute such claim or the amount claimed in the Payment Certificate, it shall deliver to the indemnified party a Counternotice as to such claim or amount. If no such Counternotice is received within the aforementioned thirty (30) day period, the indemnifying party shall be deemed to have rejected or denied liability in respect of the Payment Certificate.
(d) If, within thirty (30) days after receipt or deemed receipt by the indemnified party of the Counternotice to a Person seeking Payment Certificate, the parties have not reached agreement as to the claim or amount in question, the claim for indemnification hereunder shall be decided in accordance with the provisions of Section 12.1, unless otherwise specified in this Agreement.
(hereinafter the “Indemnified Party”e) has received notice of With respect to any Losses for which indemnification is being claimed based upon an asserted liability or has acquired knowledge of any claim by any Person obligation to a person or entity not a Party party to this Agreement Agreement, the obligations of the commencement or threatened commencement indemnifying party hereunder shall not be reduced as a result of any action or proceeding by any Person not a Party the indemnified party in responding to this Agreement (“third party claim”) or has acquired knowledge of any other such claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim action is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”)reasonably required to minimize damages, give the Indemnifying Party written notice of such claim and the commencement avoid a forfeiture or threatened commencement of such action penalty, or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of comply with a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectslegal requirement.
Appears in 1 contract
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received 11.4.1. Each Party will give prompt written notice of or has acquired knowledge to any other Party of any claim against the Party giving notice which might give rise to a claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder it against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter based upon the “Indemnifying Party”)indemnity provisions contained herein, give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state stating the nature and basis of such claim, and, if ascertainable, the claim and the actual or estimated amount thereof;
11.4.2. Notwithstanding Failure to give notice under Section 0 hereof will not affect the foregoing, the failure obligation of the Indemnified indemnifying Party to give such notice shall not excuse provide indemnification in accordance with the Indemnifying Party’s obligation to indemnify andprovisions of this Section 0 unless, in the case of a third party claim, defend the Indemnified Party, except and only to the extent the Indemnifying that, such indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsis actually prejudiced thereby.
11.4.3. In the event that any action, suit or proceeding is brought against any member of the Indemnifying Party disclaims Indemnified SourceOne Group or fails to timely acknowledge its obligations the Indemnified Aquis Group with respect to which any Party may have liability under the indemnification provisions contained herein, the indemnifying Party will have the right, at its sole cost and expense, to defend such action in the name of or on behalf of the indemnified Party.
11.4.4. In connection with such action, suit or proceeding which might give rise to a claim by one Party against another Party based on the Indemnified Party relating to any third party claimindemnity provisions in this Section 0, the Indemnified Parties will render to each other such assistance as may reasonably be required in order to ensure the proper and adequate defense of any such action, suit or proceeding.
11.4.5. An indemnified Party shall will have the right to defend such claimretain its own counsel, with counsel of its own selectionthe fees and expenses to be paid by the indemnifying Party, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense if representation of such third party claim and no such third party claim shall be settled indemnified Party by the Indemnified counsel retained by the indemnifying Party would be inappropriate because of actual or potential differing interests between such indemnified Party and any other Party represented by such counsel.
11.4.6. No Party will make any settlement of any claim which might give rise to liability of another Party under the indemnification provisions contained herein without the prior written consent of the Indemnifying Party such other Party, which consent shall such other Party covenants will not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectswithheld.
Appears in 1 contract
Samples: Management Agreement (Aquis Communications Group Inc)
Notice of Claims. Within thirty All claims for indemnification hereunder shall be resolved in accordance with the following procedures:
(30a) days after a Person If the party seeking indemnification hereunder (hereinafter the “Indemnified Party”"INDEMNIFIED PARTY") has received incurred or reasonably believes that it may incur any Losses, it shall deliver promptly written notice to the indemnifying party (the "INDEMNIFYING PARTY"), setting forth the nature and amount of the Losses or potential Losses, if possible (a "CLAIM NOTICE"). If an Indemnified Party receives notice of or has acquired knowledge of any a third-party claim by any Person not a Party for which it intends to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallseek indemnification hereunder, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), it shall give the Indemnifying Party written notice of such claim and claim, so that the commencement or threatened commencement Indemnifying Party's defense of such action claim under this Agreement may be timely instituted. The failure by an Indemnified Party to provide such written notice shall not constitute a waiver of the Indemnified Party's right to indemnity unless such failure has prejudiced the Indemnifying Party's ability to defend such claim, and then only to the extent of such prejudice.
(b) If, after receiving a Claim Notice, the Indemnifying Party desires to dispute such claim or proceedingthe amount claimed in the Claim Notice, if anyit shall deliver to the Indemnified Party a written objection to such claim or payment setting forth the basis for disputing such claim or payment. Such notice shall state be delivered within 30 days after the nature and basis date the Claim Notice to which it relates is received by the Indemnifying Party. If no such notice is received within the aforementioned 30-day period, the Indemnified Party shall be entitled to payment for such Losses from the Indemnifying Party within 10 days of the end of such 30-day objection period.
(c) If the Indemnifying Party shall agree that it is responsible for all amounts that may be recovered in connection with a third-party claim, andaction or suit (including waiving any deductible or limit that might otherwise apply under this Article VII) the Indemnifying Party shall have the right to conduct and control through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, any third-party claim, action or suit; provided, that the Indemnifying Party (i) demonstrates to the Indemnified Party's reasonable satisfaction that it has the financial ability to mount an appropriate defense of such claim and (ii) diligently contests and defends such claim. The Indemnified Party shall be entitled at any time, at its own cost and expense (except that such cost and expense shall be paid by the Indemnifying Party if ascertainablethe Indemnified Party reasonably determines that the Indemnifying Party is not adequately representing or, because of a conflict of interest, may not adequately represent the amount thereofinterests of the Indemnified Party) to participate in such defense and to be represented by attorneys of its choosing. Notwithstanding Except with the foregoing, the failure prior written consent of the Indemnified Party to give such notice shall not excuse the no Indemnifying Party’s obligation to indemnify and, in the case defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a third party claim, defend release from all liability with respect to such claim or litigation.
(d) In the Indemnified Party, except to the extent event that the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure does not elect to give or delay in giving such notice. Within ten (10) business days of receipt of defend against any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third third-party claim, the Indemnified Party shall have the right to may defend such claim, with counsel of its own selection, and compromise against such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, in such manner as it may deem appropriate and the Indemnifying Party shall defend the same be liable for any legal expenses reasonably incurred in connection with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimsuch defense; PROVIDED, HOWEVER, that the Indemnified Party mayshall not, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party Party, which consent shall not be unreasonably withheld withheld, settle or delayed. At any time after consent to the Indemnifying Party acknowledges its obligations hereunder entry of judgment with respect to any third such third-party claim.
(e) In the event of any claim by a third party, the Indemnifying Party may request parties hereto agree that they will cooperate fully with each other in connection with the Indemnified Party to agree in writing to the payment defense or compromise settlement of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsmatter.
Appears in 1 contract
Samples: Purchase Agreement (Motient Corp)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter An indemnified party shall give prompt written notice to the “Indemnified Party”) has received notice of or has acquired knowledge indemnifying party of any claim by any Person not against the indemnified party which might give rise to a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter indemnified party against the “Indemnifying Party”)indemnifying party under the indemnification provisions contained herein, give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state stating the nature and basis of such claim, and, if ascertainable, the claim and the actual or estimated amount thereof. Notwithstanding the foregoing, the provided, however, that failure of the Indemnified Party to give such notice shall will not excuse affect the Indemnifying Party’s obligation of the indemnifying party to indemnify andprovide indemnification in accordance with the terms of Section 6.1 or 6.2 unless, in the case of a third party claim, defend the Indemnified Party, except and only to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3that, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third indemnifying party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsis actually prejudiced thereby. In the event the Indemnifying Party disclaims that any action, suit or fails to timely acknowledge its obligations proceeding is brought against any indemnified party with respect to any claim which the indemnifying party may have liability under the indemnification provisions contained herein, the indemnifying party shall, upon written acknowledgement by the Indemnified Party relating indemnifying party that such action, suit or proceeding is an indemnifiable Loss pursuant to Section 6.1 or 6.2, have the right, at the cost and expense of the indemnifying party, to defend such action in the name and on behalf of the indemnified party (using counsel satisfactory to the indemnified party), and, in connection with any third party claimsuch action, the Indemnified Party indemnified party and the indemnifying party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, provided, however, that an indemnified party shall have the right to retain its own counsel, with fees and expenses paid by the indemnifying party, if representation of such indemnified party by counsel retained by the indemnifying party would be inappropriate because of actual or potential differing interests between such indemnified party and the indemnifying party. If the indemnifying party shall fail to defend such action, suit or proceeding, then the indemnified party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim action without prejudice to its right rights to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claimunder Section 6.1 or 6.2 and, in connection therewith, the Indemnifying Party shall defend indemnified party and the same with counsel indemnifying party agree to render to each other such assistance as may reasonably be required in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect order to any third party claim, the Indemnified Party may, at its expense, participate in the ensure proper and adequate defense of such third action. Neither the indemnified party nor the indemnifying party shall make any settlement of any claim and no such third which might give rise to liability of the indemnifying party claim shall be settled by under the Indemnified Party indemnification provisions contained herein without the prior written consent of the Indemnifying Party each party, which consent shall not be unreasonably withheld withheld, delayed or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsconditioned.
Appears in 1 contract
Samples: Debenture Purchase Agreement (Heritage Worldwide Inc)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter An indemnified party shall give prompt written notice to the “Indemnified Party”) has received notice of or has acquired knowledge indemnifying party of any claim by any Person not against the indemnified party which might give rise to a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter indemnified party against the “Indemnifying Party”)indemnifying party under the indemnification provisions contained herein, give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state stating the nature and basis of such claim, and, if ascertainable, the claim and the actual or estimated amount thereof. Notwithstanding the foregoing, the provided, however, that failure of the Indemnified Party to give such notice shall will not excuse effect the Indemnifying Party’s obligation of the indemnifying party to indemnify andprovide indemnification in accordance with the terms of Section 6.1 unless, in the case of a third party claim, defend the Indemnified Party, except and only to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3that, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third indemnifying party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsis actually prejudiced thereby. In the event the Indemnifying Party disclaims that any action, suit or fails to timely acknowledge its obligations proceeding is brought against any indemnified party with respect to any claim which the indemnifying party may have liability under the indemnification provisions contained herein, the indemnifying party shall, upon written acknowledgement by the Indemnified Party relating indemnifying party that such action, suit or proceeding is an indemnifiable loss pursuant to Section 6.1, have the right, at the cost and expense of the indemnifying party, to defend such action in the name and on behalf of the indemnified party (using counsel reasonably satisfactory to the indemnified party), and, in connection with any third party claimsuch action, the Indemnified Party indemnified party and the indemnifying party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, provided, however, that an indemnified party shall have the right to retain its own counsel, with fees and expenses paid by the indemnifying party, if representation of such indemnified party by counsel retained by the indemnifying party would be inappropriate because of an actual conflict of interest between such indemnified party and the indemnifying party in the particular matter at hand. If the indemnifying party shall fail to defend such action, suit or proceeding, then the indemnified party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim action without prejudice to its right rights to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claimunder Section 6.1 and, in connection therewith, the Indemnifying Party shall defend indemnified party and the same with counsel indemnifying party agree to render to each other such assistance as may reasonably be required in accordance with this Section. Where an effort to provide for the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the appropriate defense of such third action. Neither the indemnified party nor the indemnifying party shall make any settlement of any claim and no such third which might give rise to liability of the indemnifying party claim shall be settled by under the Indemnified Party indemnification provisions contained herein without the prior written consent of the Indemnifying Party each party, which consent shall not be unreasonably withheld withheld, delayed or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsconditioned.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the If an Indemnified Party shallshall assert a claim for indemnification pursuant to Section 6.1, if such claim is indemnifiable by the other Indemnified Party pursuant hereto (hereinafter the “Indemnifying Party”), give shall submit to the Indemnifying Party a written notice claim stating: (i) that an Indemnified Party incurred or reasonably believes it may incur Damages and the amount or reasonable estimate thereof of any such Damages; and (ii) in reasonable detail, the facts alleged as the basis for such claim and the commencement section or threatened commencement sections of such action this Agreement alleged as the basis or proceedingbases for the claim.
(b) In the event that any action, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the suit or proceeding is brought against any Indemnified Party with respect to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of which a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to may have liability under this Section 12.36, the Indemnifying Party shall notify have the Indemnified Party whether the Indemnifying Party acknowledges right, at its indemnification obligation andcost and expense, to defend such action, suit or proceeding in the case of a third party claim, its defense obligation with respect to the claim which was the subject name and on behalf of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim; provided however, that the Indemnified Party shall have the right to defend such claimretain its own counsel, with fees and expenses paid by Indemnifying Party, if representation of the Indemnified Party by counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event retained by the Indemnifying Party timely acknowledges its obligations hereunder would be inappropriate because of actual or potential differing interests between Indemnifying Party and the Indemnified Party. In connection with respect any action, suit or proceeding subject to any third party claimthis Section 6, the parties agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. An Indemnifying Party shall defend not, without the same with counsel in accordance with this Sectionprior written consent of the applicable Indemnified Parties, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of such Indemnified Parties for any liability arising out of such claim or demand. Where the An Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to no liability under this Section 6 for any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled settlement entered into by the an Indemnified Party without the prior written consent of the Indemnifying Party Party, which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Samples: Exclusive Operating and License Agreement (Galaxy Gaming, Inc.)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter An Indemnified Party shall give prompt written notice to the “Indemnified Party”) has received notice of or has acquired knowledge Indemnifying Party of any claim which might give rise to a claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give against the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if anyunder Article 11. Such notice shall state contain the nature and basis of the claim and the actual or estimated amount thereof; provided, however, that failure to give such claimnotice will not affect the obligation of the Indemnifying Party under Article 11 unless, and, if ascertainableand only to the extent that, the amount thereofIndemnifying Party is actually prejudiced thereby. Notwithstanding In the foregoingevent that any action, suit or proceeding is brought against any Indemnified Party with respect to which the Indemnifying Party may have Liability under Article 11, the failure Indemnifying Party shall, upon written acknowledgment by the Indemnifying Party that such action, suit or proceeding is an indemnifiable Loss for which it is responsible under Article 11 (the “Indemnification Acknowledgment”), have the right, at the cost and expense of the Indemnifying Party, to defend such action, suit or proceeding in the name and on behalf of the Indemnified Party (using counsel reasonably satisfactory to give such notice the Indemnified Party); provided, however, that an Indemnified Party shall not excuse have the right to retain its own counsel, with fees and expenses paid by the Indemnifying Party’s obligation to indemnify and, in the case if representation of a third party claim, defend the Indemnified Party, except to the extent Party by counsel retained by the Indemnifying Party has suffered damage would be inappropriate because of actual or prejudice by reason of potential differing interests between the Indemnified Party and the Indemnifying Party’s failure . The Indemnification Acknowledgment shall be delivered by the Indemnifying Party to give or delay in giving such notice. Within the Indemnified Party within ten (10) business days Business Days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject delivery of the Indemnified Party’s notice or whether it disclaims such obligationsof claim described above. In the event If the Indemnifying Party disclaims shall fail to defend any action, suit or fails proceeding, including as a result of its failure to timely acknowledge its obligations with respect to any claim by provide the Indemnified Party relating to any third party claimIndemnification Acknowledgment in accordance herewith, then the Indemnified Party shall have the right to defend such claimaction, with counsel of its own selection, and compromise such claim suit or proceeding without prejudice to its right rights to indemnification hereunderunder Article 11. In connection with any action, suit or proceeding subject to Article 11, Seller and Parent, on the event one hand, and Buyer, on the Indemnifying Party timely acknowledges its obligations hereunder with respect other hand, agree to any third party claim, render to the Indemnifying Party shall defend the same with counsel other such assistance as may reasonably be required in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect order to any third party claim, the Indemnified Party may, at its expense, participate in the ensure proper and adequate defense of such third party claim action, suit or proceeding (including, without limitation, reasonable access to their respective employees (if required) and no such third party claim shall be settled by relevant books and records). Neither Seller or Parent, on the Indemnified Party one hand, nor Buyer, on the other hand, shall, without the prior written consent of the Indemnifying Party other, which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment settle or compromise any claim or demand (x) on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the other or any Affiliate thereof or (y) if such settlement or compromise does not include an irrevocable and unconditional release of the other for any Liability arising out of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsdemand.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after a Person Any Party seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a shall, within the Survival Period, give to the Party which is obligated pursuant to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party ARTICLE XI to this Agreement provide indemnification as set forth herein (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give ) a notice (a “Claim Notice”) describing in reasonable detail the Indemnifying Party written notice facts giving rise to any claims for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of such claim and computation of the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis amount of such claim, andand a reference to the provision of this Agreement or any agreement, if ascertainablecertificate or instrument executed pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any claim in law or equity by or against a third Person as to which indemnification will be sought shall be given promptly after the amount thereof. Notwithstanding the foregoingclaim is commenced; and provided further, the that failure of the Indemnified Party to give such notice shall not excuse the Indemnifying affect such Indemnified Party’s obligation right to indemnify and, in the case of a third party claim, defend the Indemnified Party, indemnification hereunder except to the extent the Indemnifying Party shall have been materially prejudiced by such failure. [*] Certain information in this document has suffered damage or prejudice by reason of been omitted and filed separately with the Indemnified Party’s failure to give or delay in giving such noticeSecurities and Exchange Commission. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation Confidential treatment has been requested with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the omitted portions.
(b) The Indemnifying Party shall have acknowledged thirty (30) days after receipt of any Claim Notice pursuant hereto to (i) agree to the amount or method of determination set forth in writing its obligations hereunder with respect the Claim Notice to any third party claim, pay such amount to the Indemnified Party may, at its expense, participate in immediately available funds or (ii) to provide such Indemnified Party with notice that they disagree with the amount or method of determination set forth in the defense of such third party claim Claim Notice (the “Dispute Notice”) and no such third party claim shall be settled by thereafter comply with the Indemnified Party without the prior written consent of dispute resolution provisions set forth in Section 11.3(c).
(c) If the Indemnifying Party which consent shall not be unreasonably withheld provides a Dispute Notice, Purchaser and Seller agree to hold a meeting, attended by the Chief Executive Officer or delayedPresident of each Party, or their executive level designees, to attempt in good faith to attempt to resolve the matters raised in such Dispute Notice. At any time If, within fifteen (15) days after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claimsuch initial meeting, the Indemnifying Party may request Parties have not succeeded in negotiating a resolution of the Indemnified Party matters raised in such Dispute Notice, such matters shall be submitted to agree final and binding arbitration under the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”) relating to voluntary arbitrations, as more fully set forth in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsSection 12.8.
Appears in 1 contract
Notice of Claims. Within The parties agree that in case any claim is made, any suit or action is commenced, or any knowledge is received of a state of facts which, if not corrected, may give rise to a right of indemnification for such party hereunder ("Indemnified Party") from the other party ("Indemnifying Party"), the Indemnified Party will give notice to the Indemnifying Party as promptly as practicable after the receipt by the Indemnified Party of notice or knowledge of such claim, suit, action or state of facts. Notice to the Indemnifying Party under the preceding sentence shall be given no later than fifteen (15) days after receipt by the Indemnified Party of service of process in the event a suit or action has commenced or thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any under all other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if anycircumstances. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the The failure of the Indemnified Party to give such prompt notice shall not excuse the relieve an Indemnifying Party’s Party of its obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice is prejudiced by reason such failure. The Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party’s failure Party relating to give or delay any such possible claim for indemnification, and each party hereunder will render to the other such assistance as it may reasonably require of the other in giving such notice. Within ten (10) business days of receipt order to insure prompt and adequate defense of any notice issued by suit, claim or proceeding based upon a state of facts which may give rise to a right of indemnification hereunder. The Indemnifying Party shall have the right to defend, compromise and settle any third party suit, claim or proceeding in the name of the Indemnified Party pursuant to this Section 12.3, the extent that the Indemnifying Party may be liable to the Indemnified Party in connection therewith. The Indemnifying Party shall notify the Indemnified Party whether within thirty (30) days of having been notified pursuant to this Section 7.5(a) if the Indemnifying Party acknowledges its indemnification obligation and, in elects to assume the case defense of a third party any such claim, suit or proceeding and employ counsel. The Indemnified Party shall have the right to employ its defense obligation with respect own counsel if the Indemnifying Party so elects to assume such defense, but the claim which was the subject fees and expenses of such counsel shall be at the Indemnified Party’s notice or whether it disclaims such obligations's expense. In Notwithstanding anything to the event contrary set forth in the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claimpreceding paragraph, the Indemnified Party shall have the right to defend such claimdefend, with counsel of its own selection, compromise and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to settle any third party claimsuit, claim or proceeding in the Indemnifying name of the Indemnified Party shall defend the same with counsel in accordance with this Sectioninvolving an amount of less than $1,000. Where the The Indemnifying Party shall have acknowledged the right to employ its own counsel in writing its obligations hereunder with respect to any third party claimsuch case, but the Indemnified Party may, at its expense, participate in the defense fees and expenses of such third party claim and no such third party claim counsel shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by at the Indemnifying Party, to which the Indemnified Party reasonably objects's expense.
Appears in 1 contract
Notice of Claims. Within thirty (30) days after a Any Parent Indemnified Person seeking claiming indemnification hereunder (hereinafter the each, a “Indemnified Claiming Party”) will give to the Securityholders’ Representative notice of any claim (each, a “Claim”) as to which such Person proposes to demand indemnification hereunder as soon as reasonably practicable after the Claiming Party has received notice thereof, which such Claim shall state the nature, basis, the amount thereof (to the extent known or of or has acquired knowledge a nature that can be reasonably estimated, which amount shall not be conclusive of the final amount of such Claim), the method of computation thereunder and any claim by other remedy sought thereunder, and any Person other material details pertaining thereto, along with copies of relevant documents evidencing such Claim and the basis for indemnification sought (provided that failure to give timely notice will not a Party limit the indemnification obligations of the indemnifying parties hereunder except to the extent the indemnifying parties are materially prejudiced hereby). The Securityholders’ Representative will have the right to object to any Claim made pursuant to this Agreement of the commencement or threatened commencement of any action or proceeding Section 8.2(a) by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party delivering written notice of such claim objection (each, a “Claim Objection Notice”) to the Claiming Party within 30 days following the Securityholders’ Representative’s receipt of a Claim notice (such period, the “Claim Objection Period”). The Claim Objection Notice will specify in reasonable detail the basis for the Securityholders’ Representative’s objection to the Claim. In the event that the Securityholders’ Representative does not object to a Claim within the Claim Objection Period, (i) the Securityholders’ Representative will be deemed to have accepted and agreed to the Claim set forth in the Claim notice on behalf of the Indemnifying Securityholders and will be precluded from raising any objection thereto after the Claim Objection Period, and (ii) Parent will be entitled to recover from the General Indemnity Escrow Account (in which case Parent and the commencement Securityholders’ Representative shall promptly (and in any event within two Business Days) following the expiration of the Claim Objection Period deliver a joint written instruction to the Escrow Agent to release from the General Indemnity Escrow Account the lesser of (x) the amount to which Parent is entitled in connection with such Claim and (y) the amount remaining in the General Indemnity Escrow Account), set off against all or threatened commencement any portion of such action or proceedingany Milestone Payment in accordance with Section 8.8, if any. Such notice shall state , or demand payment in cash from the nature and basis Indemnifying Securityholders for any Damages of the Claiming Party with respect to such claim, and, if ascertainable, Claim following the amount thereofexpiration of the Claim Objection Period in accordance with Section 8.8. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event that the Indemnifying Party does soSecurityholders’ Representative accepts or agrees to a Claim at any time, whether before or after the Indemnified Party Claim Objection Period, and such Claim is to be satisfied from the General Indemnity Escrow Account, Parent and the Securityholders’ Representative shall promptly agree (and in writing any event within two Business Days) deliver a joint written instruction to such settlement, unless such settlement would involve a remedy or remedies, other than the payment Escrow Agent to release from the General Indemnity Escrow Account the lesser of money damages by (x) the Indemnifying Party, amount to which Parent is entitled in connection with such Claim and (y) the Indemnified Party reasonably objectsamount remaining in the General Indemnity Escrow Account).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pacira Pharmaceuticals, Inc.)
Notice of Claims. Within thirty An indemnified party shall promptly (30and, ---------------- in any event, within five business days) days after give the indemnifying party notice of any matter which an indemnified party has determined has given or could give rise to a Person seeking right of indemnification hereunder under Section 6.2, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and liabilities of the indemnifying party under Section 6.2 with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in Section 6.2 (hereinafter "Third Party Claims") shall be governed by and contingent ------------------ upon the “Indemnified Party”) has following additional terms and conditions: if an indemnified party shall have received notice of or has acquired knowledge of any claim by Third Party Claim, the indemnified party shall promptly (and, in any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”event, within five business days) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written indemnifying party notice of such claim and the commencement or threatened commencement of such action or proceedingThird Party Claim; provided, if any. Such notice shall state the nature and basis of such claimhowever, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, that the failure of the Indemnified Party to give provide such notice shall not excuse ----------------- release the Indemnifying Party’s obligation to indemnify and, in the case indemnifying party from any of a third party claim, defend the Indemnified Party, its obligations under Section 6.2 except to the extent the Indemnifying indemnifying party is materially prejudiced by such failure and shall not relieve the indemnifying party from any other obligation or liability that it may have to any indemnified party otherwise than under Section 6.2. If the indemnifying party acknowledges in writing its obligation to indemnify the indemnified party hereunder against any Losses that may result from such Third Party has suffered damage or prejudice by reason Claim, then the indemnifying party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the indemnified party within five days of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any such notice issued by from the Indemnified Party pursuant indemnified party; provided, however, that if there exists or ----------------- is reasonably likely to this Section 12.3exist a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified party for the same counsel to represent both the indemnified party and the indemnifying party, then the Indemnifying Party indemnified party shall notify the Indemnified Party whether the Indemnifying Party acknowledges be entitled to retain its indemnification obligation andown counsel, in each jurisdiction for which the case of a third indemnified party claimreasonably determines counsel is required, its defense obligation with respect to at the claim which was the subject expense of the Indemnified Party’s notice or whether it disclaims such obligationsindemnifying party. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third indemnifying party claim, the Indemnified Party shall have exercises the right to defend undertake any such claim, with counsel of its own selection, and compromise defense against any such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Third Party timely acknowledges its obligations hereunder with respect to any third party claimClaim as provided above, the Indemnifying Party indemnified party shall defend cooperate with the same with counsel indemnifying party in accordance with this Section. Where such defense and make available to the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party mayindemnifying party, at its the indemnifying party's expense, participate all witnesses, pertinent records, materials and information in the defense of such third party claim and no such third party claim shall be settled indemnified party's possession or under the indemnified party's control relating thereto as is reasonably required by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayedindemnifying party. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), andSimilarly, in the event the Indemnifying indemnified party is, directly or indirectly, conducting the defense against any such Third Party does soClaim, the Indemnified Party indemnifying party shall promptly agree cooperate with the indemnified party in writing such defense and make available to the indemnified party, at the indemnifying party's expense, all such settlementwitnesses, unless such settlement would involve a remedy records, materials and information in the indemnifying party's possession or remedies, other than under the payment of money damages indemnifying party's control relating thereto as is reasonably required by the Indemnifying Party, to which indemnified party. Such Third Party Claim may be settled by the Indemnified indemnifying party if it contains a full release of the indemnified party and such Third Party reasonably objectsClaim may be settled by the indemnified party if it contains a full release of the indemnifying party.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Telco Communications Group Inc)
Notice of Claims. Within thirty If a claim for Losses (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified PartyClaim”) has received is to be made by Parent Representative that does not involve a third party, Parent Representative shall give written notice of or has acquired knowledge of any claim by any Person not (a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claimClaim Notice”) or has acquired knowledge of any other claim hereunder against another Party hereto to the Company, and the Escrow Agent (“first party claim”) the Indemnified Party shallin such capacity, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), which Claim Notice shall describe the claim for indemnification hereunder and specify in reasonable detail, to the extent known and reasonably quantifiable at such time, the amount or estimated amount of the Claim, which statement or estimate shall not be binding and may be revised, amended or modified upon notice to the Indemnifying Party. The failure of Parent Representative to give timely notice of a Claim hereunder shall not affect Parent Representative’s rights to indemnification hereunder. If the applicable Indemnifying Party disputes in writing its liability with respect to such Claim or the estimated amount of such Losses pursuant to this Section 10.4 within forty-five (45) days following delivery of such Claim Notice, the parties shall attempt in good faith to resolve such dispute; provided, that, if such dispute has not been resolved within thirty (30) days following notice of such dispute of the Claim Notice, then the amount of indemnification to which Parent Representative shall be entitled under this Article X shall be determined by (i) the written agreement between Parent Representative and the Indemnifying Party through the use of good faith efforts to resolve such dispute or (ii) in accordance with Section 11.6 hereof. Following such determination of the amount of indemnification, or if the applicable Indemnifying Party notifies Parent Representative that it does not dispute the claim described in the Claim Notice or fails to respond within forty-five (45) days following receipt of such Claim Notice, such determination of the amount of indemnification or the Losses identified in the Claim Notice, as applicable, will be conclusively deemed a liability of the Indemnifying Party under Section 10.2(a), and Parent Representative shall forward to the Indemnifying Party written notice of any such claim sums due and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages owing by the Indemnifying Party, and the Seller Representative and Parent Representative shall, within three (3) Business Days after the date of such notice, provide joint written instructions to which the Indemnified Party reasonably objectsEscrow Agent to distribute to Parent a number of Escrow Shares (and, after distribution of all Escrow Shares, other Escrow Property) with a value equal to such sums so due and owing (with each Escrow Share valued at the Redemption Price).
Appears in 1 contract
Samples: Merger Agreement (Technology & Telecommunication Acquisition Corp)
Notice of Claims. Within The parties agree that in case any claim is made, any suit or action is commenced, or any knowledge is received of a state of acts which, if not corrected, may give rise to a right of indemnification for such party hereunder ("Indemnified Party") from the other party ("Indemnifying Party") the Indemnified Party will give notice to the Indemnifying Party as promptly as practicable after the receipt by the Indemnified Party of notice or knowledge of such claim, suit, action or state of facts. Notice to the Indemnifying Party under the preceding sentence shall be given no later than fifteen (15) days after receipt by the Indemnifying Party of service of process in the event a suit or action has commenced or thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any under all other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if anycircumstances. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the The failure of the Indemnified Party to give such prompt notice shall not excuse the relieve an Indemnifying Party’s Party of its obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice is prejudiced by reason such failure. The Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable period, during normal business hours, all books and records of the Indemnified Party’s failure Party relating to give or delay any such possible claim for indemnification, and each party hereunder will render to the other such assistance as it may reasonably require of the other in giving such notice. Within ten (10) business days of receipt order to insure prompt and adequate defense of any notice issued by suit, claim or proceeding based upon a state of acts which may give rise to a right of indemnification hereunder. The Indemnifying Party shall have the right to defend, compromise and settle any third party person suit, claim or proceeding in the name of the Indemnified Party pursuant to this Section 12.3, the extent that the Indemnifying Party may be liable to the Indemnified Party in connection therewith. The Indemnifying Party shall notify the Indemnified Party whether within ten (10) days of having been notified pursuant to this SECTION 7.4(a) if the Indemnifying Party acknowledges its indemnification obligation and, in elects to assume the case defense of a third party any such claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice suit or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to proceeding any claim by employ counsel, provided that the Indemnified Party relating does not object to any third party claim, the such counsel in a reasonable exercise of its discretion. The Indemnified Party shall have the right to defend such claim, with counsel of employ its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event counsel if the Indemnifying Party timely acknowledges its obligations hereunder with respect so elects to any third party claimassume such defense, but the fees and expenses of such counsel shall be the at the Indemnified Party's expense, unless (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; (ii) the Indemnifying Party shall defend not have employed counsel to take charge of the same with counsel defense of such action after electing to assume the defense thereof; or (iii) such Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Indemnifying Party (in accordance with this Section. Where which case the Indemnifying Party shall not have acknowledged in writing its obligations hereunder with respect the right to any third party claim, the Indemnified Party may, at its expense, participate in direct the defense of such third party claim action on behalf of the Indemnified Party), in any of which events said reasonable fees and no such third party claim expenses shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages borne by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after a Person seeking indemnification hereunder If any third party should notify any party (hereinafter the “"Indemnified Party”") has received notice of or has acquired knowledge of with respect to any matter (a "Third Party Claim") that may give rise to a claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of for indemnification against any other claim hereunder against another Party hereto party (“first party claim”the "Indemnifying Party") under this Section 8, then the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give will promptly notify the Indemnifying Party written notice of such claim and thereof in writing; provided, however, that no delay on the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to give such notice the extent) the Indemnifying Party thereby is prejudiced.
(b) An Indemnifying Party’s assumption of the defense of an Indemnified Party against a Third Party Claim shall not excuse serve as an admission of the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the against such Third Party Claim. Any Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, the Indemnified Party against the Third Party Claim with counsel of its own selectionchoice reasonably satisfactory to the Indemnified Party so long as (i) the Third Party Claim involves primarily money damages in an amount not to exceed the Cap, and compromise such claim without prejudice to its right to indemnification hereunder. In the event (ii) the Indemnifying Party timely acknowledges its obligations hereunder conducts the defense of the Third Party Claim actively and diligently and (iii) such Third Party Claim does not seek an injunction or other equitable relief against the Indemnified Party or relate to or arise in connection with respect to any third party claim, criminal or quasi criminal proceeding.
(c) So long as the Indemnifying Party shall defend is conducting the same with counsel defense of the Third Party Claim in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimSection 8.3(b), (i) the Indemnified Party may, may retain separate co-counsel at its expense, sole cost and expense and participate in the defense of such third party claim and no such third party claim shall be settled by the Third Party Claim, (ii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim, nor take any voluntary action prejudicial to the determination of the Third Party Claim, without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after and (iii) the Indemnifying Party acknowledges its obligations hereunder will not consent to the entry of any judgment or enter into any settlement with respect to any third the Third Party Claim unless written agreement from the party claim, bringing the Indemnifying Third Party may request Claim is obtained releasing the Indemnified Party to agree in writing to the payment or compromise of such third party claim from all liability thereunder.
(provided such payment or compromise has been previously approved in writing by the third party claimant), and, in d) In the event that the Indemnifying Party does sonot (or otherwise ceases to) conduct the defense of the Third Party Claim under Section 8.3(b), the Indemnified Party shall promptly agree may defend against the Third Party Claim in writing any manner it may deem appropriate and may consent to such settlement, unless such the entry of judgment or enter into a settlement would involve a remedy or remedies, other than of the payment Third Party Claim with the prior written consent of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after a Person seeking indemnification hereunder If any of the Persons to be indemnified under this Article 10 (hereinafter the “Indemnified Party”) has received notice of suffered or has acquired knowledge of incurred any claim by any Person not Loss (other than one resulting from a Third Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) Claim), the Indemnified Party shall, if such claim shall so notify in writing the party from whom indemnification is indemnifiable by the other Party pursuant hereto sought (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis ) promptly after obtaining knowledge of such claim, and, if ascertainabledescribing such Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of such Loss, all with reasonable specificity and containing a reference to the provisions of this Agreement or any Implementing Agreement in respect of which such Loss shall have occurred. Notwithstanding A failure to give notice in a timely manner pursuant to this Section 10.3(a) shall not limit the foregoing, the failure obligation of the Indemnified Indemnifying Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, under this Article 10 except to the extent such Indemnifying Party is materially prejudiced thereby. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party has suffered damage in determining the validity of any claim of indemnity (including reasonable access to and copies of records and information that are reasonably relevant to such matters and the making available of employees on a mutually convenient basis for providing additional information and explanation of any material relating to such matters). If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days following its receipt of a notice delivered pursuant to this Section 10.3 that the Indemnifying Party disputes its liability to the Indemnified Party under this Article 10, such claim specified by the Indemnified Party in such notice shall be conclusively determined to be a liability of the Indemnifying Party.
(b) If any Proceeding is instituted by or prejudice against a third party with respect to which the Indemnified Party intends to claim any Liability or expense as a Loss under this Article 10, the Indemnified Party shall promptly following receipt by reason such Indemnified Party of notice of the Third Party Claim notify the Indemnifying Party in writing and in reasonable detail of such Proceeding. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly following the Indemnified Party’s failure to give or delay in giving such notice. Within ten receipt thereof, copies of all notices and documents (10including court papers) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim received by the Indemnified Party relating to any third party claim, the Indemnified Third Party shall have the right Claim. A failure to defend such claim, with counsel of its own selection, give notice and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in tender the defense of such third party claim and no such third party claim the Proceeding in a timely manner pursuant to this Section 10.3(b) shall be settled by not limit the Indemnified Party without the prior written consent obligation of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At under this Article 10: (i) except to the extent such Indemnifying Party is materially prejudiced thereby, and for this purpose, any time after failure to give notice and to tender the defense that results in the Indemnifying Party acknowledges its obligations hereunder with respect not controlling or participating in such Proceeding shall be deemed to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by materially prejudice the Indemnifying Party, to which the Indemnified Party reasonably objectsand (ii) except as provided by Section 10.4 below.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after If a Person Covered Party seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received receives notice of or has acquired knowledge the assertion of any claim by any Person not (a “Claim Notice”) with respect to which a Party required to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement provide indemnification hereunder (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the an “Indemnifying Party”)) may be obligated under this Agreement to provide indemnification, such Covered Party shall give the such Indemnifying Party written prompt notice thereof; provided, however, that the failure of any Covered Party to give such claim and the commencement or threatened commencement Claim Notice shall not relieve any Indemnifying Party of such action or proceeding, if anyits obligations under this Article VIII. Such notice Claim Notice shall state describe the nature and basis of such claimclaim in reasonable detail, and, if ascertainablepracticable, shall indicate the estimated amount thereof. Notwithstanding the foregoingof Damages that have been or may be sustained by such Covered Party.
(b) An Indemnifying Party, the failure of the Indemnified Party to give at such notice shall not excuse the Indemnifying Party’s obligation own expense and through counsel reasonably acceptable to indemnify and, in the case of a third party claim, defend the Indemnified Covered Party, except may elect to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to defend any third party claim; and if it so elects, it shall, within 20 calendar days after receiving notice of such third party claim (or sooner, if the Indemnified nature of such third party claim so requires), notify the Covered Party of its intent to do so, and such Covered Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate cooperate in the defense of such third party claim; provided, that such notice shall include an acknowledgment from the Indemnifying Party that such Indemnifying Party is undertaking and will prosecute the defense of the claim and no confirming that based on the information available as between the Covered Party and such Indemnifying Party, such Indemnifying Party will, subject to the provisions of Section 8.4, be able to pay the full amount of potential Liability in connection with any such claim (including for the Proceeding and all Proceedings on appeal or other review which counsel for the Covered Party may reasonably consider appropriate); provided; further; such Indemnifying Party shall not have the right to defend or direct the defense of such claim that (i) is asserted directly by or on behalf of a Person that is a supplier or customer of the Company, the Purchaser or their Affiliates, (ii) seeks an injunction or other equitable relief against the Covered Party. After notice from an Indemnifying Party to a Covered Party of its election to assume the defense of a third party claim, such Indemnifying Party shall not be liable to such Covered Party for any legal or other expenses subsequently incurred by such Covered Party in connection with the defense thereof; provided, however, that such Covered Party shall have the right to employ one counsel to represent such Covered Party and all other Persons entitled to indemnification in respect of such claim hereunder if, in the reasonable opinion of counsel to the Covered Party (y) there are legal defenses available to a Covered Party that are different from or additional to those available to the Indemnifying Party, or (z) a conflict of interest between such Covered Party and such Indemnifying Party exists in respect of such claim which would make representation of the Indemnifying Party and the Covered Party impermissible under applicable standards of professional conduct, and in either of those events the reasonable fees and expenses of one such separate counsel for all Covered Parties shall be settled paid by such Indemnifying Party. If the Indemnifying Party does not notify the Covered Party within such 20 calendar days, the Covered Party shall have the right to undertake, at the Indemnifying Party’s cost, risk and expense, the defense, compromise or settlement of the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Covered Party, enter into any settlement that is not exclusively monetary and shall be paid entirely by the Indemnified Indemnifying Party and does not include as an unconditional term thereof the giving by the Person or Persons asserting such claim to all Covered Parties of an unconditional release from all Liability with respect to such claim or consent to entry of any judgment. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control any claim relating to Taxes of the Purchaser or its Subsidiaries, or the Company or any of its Subsidiaries for any Tax or accounting period ending after the Closing Date and shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the Liability of the Purchaser or its Subsidiaries, or the Company or any of its Subsidiaries for Taxes for any Tax or accounting period (or portion thereof) ending after the Closing Date, without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, Purchaser; in the event of a conflict between this Section 8.3(b) and Section 6.7(f), Section 6.7(f) shall govern.
(c) Sections 8.3(a) and 8.3(b) do not apply to the Indemnifying Party does somatters set forth on Schedules 8.2(a)(v) and 8.2(a)(vi), the Indemnified Party which shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages be governed by the Indemnifying Partyprocedures set forth on Schedules 8.2(a)(v) and 8.2(a)(vi), to which the Indemnified Party reasonably objectsrespectively.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Air Methods Corp)
Notice of Claims. (a) Any Parent Indemnified Party or Company Indemnified Party seeking indemnification hereunder (the “Indemnified Party”) shall, within the relevant limitation period provided for in Section 8.01, give in the case of indemnification sought by or on behalf of (i) any Company Indemnified Party, to Parent, and (ii) any Parent Indemnified Party, to the Shareholders’ Representative on behalf of the Company Indemnifying Parties (the “Indemnifying Party”) a written notice describing in reasonable detail the facts giving rise, or that could reasonably be expected to give rise, to any claims for indemnification hereunder (a “Claim Notice”) and shall include in such Claim Notice (to the extent then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any agreement, certificate or instrument executed pursuant hereto or in connection herewith upon which such claim is based; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced; provided, further, that failure to give such written notice shall not relieve any Indemnifying Party of its obligations hereunder, except to the extent it shall have been materially prejudiced by such failure.
(b) An Indemnifying Party shall have thirty (30) days after the giving of any Claim Notice pursuant hereto to (i) agree to the amount or method of determination set forth in the Claim Notice and to pay such amount to such Indemnified Party in immediately available funds or (ii) provide such Indemnified Party with written notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the “Dispute Notice”). Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge giving of any claim by any Person not Dispute Notice, a Party to this Agreement representative of the commencement or threatened commencement of any action or proceeding by any Person not a Indemnifying Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) and the Indemnified Party shall, if such claim is indemnifiable by shall negotiate in good faith to resolve the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsmatter. In the event that the controversy is not resolved within thirty (30) days of the giving of the Dispute Notice, the parties shall thereupon proceed to pursue any and all available remedies at law, subject to Section 8.08. If the Indemnifying Party disclaims is a Company Indemnifying Party and the Shareholders’ Representative agrees to the Claim Notice pursuant to clause (i) above or fails to provide a timely acknowledge its obligations with respect Dispute Notice pursuant to any claim by clause (ii) above, then the Indemnified Party relating to any third party claim, the Parent Indemnified Party shall have be entitled to receive from the right to defend such claim, with counsel of its own selectionEscrow Account the amount set forth in the Claim Notice, and compromise the Shareholders’ Representative shall promptly execute a written instruction to the Escrow Agent to release such claim without prejudice amount (up to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate maximum amount contained in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing Escrow Account) to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Indemnified Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after a Person Any Purchaser Indemnified Party or Seller Indemnified Party seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by within the other Party pursuant hereto (hereinafter the “Indemnifying Party”)applicable Survival Period provided for in Section 12.2, give (i) to the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify andPurchaser, in the case of indemnification sought by any Seller Indemnified Party, or (ii) to the Sellers’ Representative, in the case of indemnification sought by any Purchaser Indemnified Party, a third party claimwritten notice (a “Claim Notice”) describing in reasonable detail the facts giving rise, defend or that could reasonably be expected to give rise, to the Claim for indemnification hereunder that is the subject of the Claim Notice. The Claim Notice shall include (if and to the extent then known) the amount of such Claim and a reference to the provision or provisions of this Agreement upon which such Claim is based. A Claim Notice shall be given promptly following the Indemnified Party’s determination that facts or events are reasonably expected to give rise to a Claim for indemnification hereunder; provided, that a Claim Notice in respect of any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or suit is commenced. Notwithstanding any other provision herein or elsewhere to the contrary, the failure to give such written notice shall not relieve any Indemnifying Party of its obligations hereunder, except to the extent it shall have been materially prejudiced by such failure; provided, that such Claim Notice has been delivered within the applicable Survival Period for such Claim, as set forth in Section 12.2.
(b) An Indemnifying Party has suffered damage or prejudice by reason of (acting through the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation andPurchaser, in the case of a third party claimindemnification sought by any Seller Indemnified Party, its defense obligation with respect and acting through the Sellers’ Representative, in the case of indemnification sought by any Purchaser Indemnified Party) shall have thirty (30) calendar days after the giving of any proper Claim Notice pursuant hereto to (i) agree to the claim which was amount or method of determination set forth in the subject Claim Notice and to pay or cause to be paid such amount to such Indemnified Party in immediately available funds, or (ii) provide such Indemnified Party with written notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the “Dispute Notice”). For a period of thirty (30) calendar days after the giving of any Dispute Notice, the Indemnifying Party and the Indemnified Party shall negotiate in good faith to resolve the matter; provided, however, that if Indemnified Party is a Purchaser Indemnifying Party, and the Sellers’ Representative objects to only a portion of the amount of the Claim in the Dispute Notice, such Purchaser Indemnified Party’s notice Party shall be entitled to receive from the Indemnification Escrow Account or whether it disclaims the JN Escrow Account, as applicable, the undisputed portion of the amount set forth in the Claim Notice, and the Sellers’ Representative and the Purchaser shall promptly (and in any event within five (5) Business Days) execute joint written instructions to the Escrow Agent to release such obligationsamount (up to the maximum amount contained in the Indemnification Escrow Account or the JN Escrow Account, as applicable). In the event that the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by controversy is not resolved within thirty (30) calendar days after the Indemnified Party relating to any third party claim, date the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claimDispute Notice is given, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, and the Indemnified Party may, at its expensesubject to the limitations set forth in this Article XII, participate in thereupon submit such dispute to the defense of such third party claim and no such third party claim shall be settled by applicable court or courts having jurisdiction pursuant to Section 14.5. If the Indemnifying Party agrees to the Claim Notice pursuant to clause (i) above or fails to provide a timely Dispute Notice pursuant to clause (ii) above, then (A) if the Indemnified Party without is a Purchaser Indemnified Party, subject to the prior limitations set forth in this Article XII, such Purchaser Indemnified Party shall be entitled to receive from the Indemnification Escrow Account or the JN Escrow Account, as applicable, the amount set forth in the Claim Notice, and the Sellers’ Representative and the Purchaser shall promptly (and in any event within five (5) Business Days) execute joint written consent instructions to the Escrow Agent to release such amount (up to the maximum amount contained in the Indemnification Escrow Account or the JN Escrow Account, as applicable) to such Purchaser Indemnified Party, and then, subject in all respects to the limitations set forth in this Article XII and to the extent such Claim is not otherwise covered under the R&W Insurance Policy, using its own funds, the Sellers shall promptly (and in any event within three (3) Business Days) pay the Purchaser Indemnified Party the amount set forth in the Claim Notice in excess of the Indemnifying Party which consent shall not be unreasonably withheld Indemnification Escrow Amount by wire transfer of immediately available funds, or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request (B) if the Indemnified Party to agree in writing is a Seller Indemnified Party, subject to the payment limitations set forth in this Article XII, the Purchaser shall, using its own funds, promptly (and in any event within three (3) Business Days) pay the Seller Indemnified Party the amount set forth in the Claim Notice by wire transfer of immediately available funds.
(c) Notwithstanding Section 12.4(a) or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimantSection 12.4(b), andthe provisions of this Section 12.4 shall not apply in the case of a Claim Notice provided in connection with a Third Party Claim, which claims shall be governed by Section 12.5.
(d) Following the delivery of a Claim Notice by a Purchaser Indemnified Party, the Purchaser shall provide the Sellers’ Representative with reasonable access to the Company’s books and Records, and reasonable access (including electronically) to such employees or personnel of the Company, its Subsidiaries, and the Purchaser during normal business hours and upon reasonable prior notice, as the Sellers’ Representative may reasonably require for the purposes of reviewing the Claim Notice and resolving any disputes or responding to any matters or inquiries raised in the Claim Notice and shall use its reasonable best efforts to respond promptly, in good faith, and as fully and accurately as reasonably possible to inquiries from the event Sellers’ Representative related to the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsforegoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Universal Technical Institute Inc)
Notice of Claims. Within Each written notice of claim (a "CLAIM NOTICE") shall state precisely its grounds to the extent known to the Indemnified Party and, if reasonably ascertainable, the amount of Damages claimed (which estimate shall not be conclusive of the final amount of such claim and demand) and such available information as may reasonably be required by the Sellers to assess the merits of the claim and the computation or estimate of the Damages. Each Claim Notice shall be notified by Buyer to each of the Sellers with reasonable promptness in view of the circumstances following the date on which the Indemnified Party first becomes aware of any loss or damage which gives rise to a claim. If, after having been notified of a claim by Buyer, the Sellers do not contest, by written notice to Buyer, the validity of the claim within thirty (30) days after a Person seeking indemnification hereunder delivery to the Sellers of such notice from Buyer (hereinafter the “Indemnified Party”"DIRECT CLAIM REVIEW PERIOD") has received notice of or has acquired knowledge of any the Sellers shall be deemed to have accepted the claim by any Person not a Party to this Agreement so notified. During the Direct Claim Review Period Sellers may proceed with such investigation of the commencement underlying claim as it considers necessary or threatened commencement desirable and/or if the parties agree, on or prior to the expiration of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallDirect Claim Review Period, if such claim is indemnifiable by upon the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim validity and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis amount of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party Sellers shall pay to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except within fifteen (15) days following the date of such agreement or the expiry of the Direct Claim Review Period, the full amount of such claim. If the parties are unable to reach agreement on or prior to the extent the Indemnifying Party has suffered damage or prejudice by reason date of the Indemnified Party’s failure to give expiration of the Direct Claim Review Period or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by if the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall Sellers notify the Indemnified Party whether during the Indemnifying Party acknowledges Direct Claim Review Period that it disputes its indemnification obligation and, in the case of a third party claim, its defense obligation with respect liability to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party in respect of the underlying claim, setting forth the reasons for such objection, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event may initiate proceedings against the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with ARTICLE XII.10 of this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsAgreement.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after a Person Any Optionee Group Member or Tribune Denver Group Member seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received shall give promptly to the party obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of or has acquired knowledge of any claim by any Person not a Party to this Agreement computation of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis amount of such claim, andand a reference to the provision of this Agreement or any other agreement, if ascertainable, the amount thereofdocument or instrument executed hereunder or in connection herewith upon which such claim is based. Notwithstanding the foregoing, the The failure of the any Indemnified Party to give such notice the Claim Notice promptly as required by this Section 10.3 shall not excuse the Indemnifying affect such Indemnified Party’s obligation rights under this Article X except to indemnify the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b) In calculating any Loss or Expense there shall be deducted any insurance recovery in respect thereof. Any indemnity payment hereunder with respect to any Loss or Expense shall be calculated on an “After-Tax Basis,” which shall mean an amount which is sufficient to compensate the Indemnified Party for the event giving rise to such Loss or Expense (the “Indemnified Event”), determined after taking into account (1) all increases in federal, state, Table of Contents local or other Taxes (including estimated Taxes) payable by the Indemnified Party as a result of the receipt of the indemnity payment (as a result of the indemnity payment being included in income, resulting in a reduction of tax basis, or otherwise); provided, however, that the parties hereto agree to report each payment made in respect of a Loss or Expense as an adjustment to the Purchase Price for federal income Tax purposes, (2) all increases in federal, state, local and other Taxes (including estimated Taxes) payable by the Indemnified Party for all affected taxable years as a result of the Indemnified Event and (3) all reductions in federal, state, local and foreign Taxes (including estimated Taxes) payable by the Indemnified Party as a result of the Indemnified Event. All calculations shall be made using reasonable assumptions agreed upon by Tribune Denver and Optionee and, in the case of a third party claimany present value calculations, defend shall be made using the Indemnified Party, except to applicable federal rate in effect at the extent the Indemnifying Party has suffered damage or prejudice by reason time of the Indemnified Party’s failure to give or delay in Event (based on the Federal mid-term rate) using semi-annual compounding plus two percentage points.
(c) After the giving such notice. Within ten (10) business days of receipt of any notice issued Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article X shall be determined: (i) by the written agreement between the Indemnified Party pursuant and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to this Section 12.3, the Indemnifying Party shall notify which the Indemnified Party whether and the Indemnifying Party acknowledges its indemnification obligation and, in the case Indemnitor shall agree. The judgment or decree of a third party claimcourt shall be deemed final when the time for appeal, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice if any, shall have expired and no appeal shall have been taken or whether it disclaims such obligationswhen all appeals taken shall have been finally determined. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the The Indemnified Party shall have the right to defend such claim, with counsel burden of its own selection, proof in establishing the amount of Losses and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled Expenses suffered by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsit.
Appears in 1 contract
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Third Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) Claim, the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if anyThird Party Claim. Such notice shall state the nature and basis of such claimThird Party Claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, and defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.310.5, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its and defense obligation with respect to the claim Third Party Claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Third Party relating to any third party claimClaim, the Indemnified Party shall have the right to defend such claimThird Party Claim, with counsel of its own selection, and compromise such claim Third Party Claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claimThird Party Claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimThird Party Claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim Third Party Claim and no such third party claim Third Party Claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claimThird Party Claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim Third Party Claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Samples: License and Development Agreement (Power Medical Interventions, Inc.)
Notice of Claims. Within thirty (30) days after a Person Each party shall promptly notify the other party in writing of all third party claims which may give rise to the right of indemnification for breaches of representations and warranties, it being understood that if, through the fault of the party seeking indemnification, the indemnifying party does not receive notice of any such matter in time to contest the determination of any liability which is susceptible to being contested, the indemnifying party shall not be obligated to indemnify the other party with respect thereto. Each such notice shall specifically describe the matter which may give rise to indemnification hereunder (hereinafter and shall indicate the “particular representation or warranty which is alleged to have been breached. The Indemnifying Party shall be entitled to participate in and, to the extent that it wishes, to assume, the defense of any such matter with counsel reasonably acceptable to the Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) ; provided, that the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto may participate with counsel of its choice (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse at the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent expense) if the Indemnifying Party has suffered damage or prejudice by reason of does not pursue such defense with reasonable diligence, the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by claim involves potential criminal liability upon the Indemnified Party pursuant to this Section 12.3or a potential or actual conflict of interest exists among the parties. Except as set forth in the immediately preceding sentence, after notice of the election of the Indemnifying Party that it will assume the defense thereof, the Indemnifying Party shall notify not be liable to the Indemnified Party whether for its legal or other expenses incurred thereafter in connection with the defense thereof. The Indemnifying Party acknowledges its shall have the authority to settle any third party claim to which indemnification obligation andunder this Agreement relates, without the consent of the Indemnified Party only if: (1) the settlement does not exceed the limitation set forth in Article 5, (2) the case settlement provides only for a monetary payment, and (3) the settlement includes as an unconditional term thereof the giving of a release from all liability with respect to such claim by each claimant to each Indemnified Party that is or may be subject to such third party claim, its defense obligation . Except with respect to the claim which was the subject prior consent of the Indemnified Indemnifying Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have not pay or voluntarily permit the right to defend such claim, with counsel determination of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any liability under any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsindemnification under this Agreement relates.
Appears in 1 contract
Notice of Claims. Within thirty (30a) days after a Person Any Indemnitee seeking indemnification hereunder shall give a notice (hereinafter the a “Indemnified PartyClaim Notice”) has received notice to the party from whom indemnification is sought (either a Holder Representative (in the case of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”Parent Indemnitee) or has acquired knowledge Parent (in the case of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shalla Seller Indemnitee), if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give specifying in reasonable detail the Indemnifying Party written notice facts giving rise to any Indemnification Claim and shall include in such Claim Notice (if then known) the amount or the method of computation of the amount of such claim Indemnification Claim, and a reference to the commencement provision of this Agreement or threatened commencement any agreement, certificate or instrument executed pursuant hereto or in connection herewith upon which such Indemnification Claim is based; provided, that a Claim Notice in respect of such any action at law or suit in equity by or against a third Person as to which indemnification will be sought shall be given promptly after the action or proceedingsuit is commenced; and provided further, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the that failure of the Indemnified Party to give such notice shall not excuse the relieve any Indemnifying Party’s obligation to indemnify and, in the case Party of a third party claim, defend the Indemnified Party, its obligations hereunder except to the extent it shall have been materially prejudiced by such failure.
(b) The Indemnifying Party shall have 30 days after the giving of any Claim Notice pursuant hereto to provide such Indemnitee with notice that it disagrees with the amount or method of determination set forth in the Claim Notice (the “Disagreement Notice”). If a timely Disagreement Notice is not received or to the extent an item is not objected to in the Disagreement Notice, the Claim Notice shall be deemed to have been accepted and final and binding on the parties, absent manifest error. If the Indemnifying Party has suffered damage or prejudice by reason of delivers a timely Disagreement Notice, the Indemnified Party’s failure to give or delay parties shall resolve such conflict in giving such notice. Within ten accordance with the procedures set forth in Section 8.4(c).
(10c) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, If the Indemnifying Party shall notify have provided a Disagreement Notice, the Indemnified Party whether parties will attempt in good faith to agree upon the Indemnifying Party acknowledges its indemnification obligation and, in rights of the case of a third party claim, its defense obligation respective parties with respect to each of such claims. If the claim which was the subject parties should so agree, a memorandum setting forth such agreement will be prepared and signed by Parent and either of the Indemnified Party’s notice or whether it disclaims such obligationsHolder Representatives. In the event the Indemnifying Party disclaims or fails parties shall fail to timely acknowledge its obligations with respect to any claim by reach an agreement within 30 days after the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event date on which the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claimprovided a Disagreement Notice, the Indemnifying Party dispute shall defend the same with counsel be resolved in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense provisions of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsArticle IX.
Appears in 1 contract
Samples: Merger Agreement (Neustar Inc)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter An indemnified party shall give prompt ---------------- written notice to the “Indemnified Party”) has received notice of or has acquired knowledge indemnifying party of any claim by any Person not against the indemnified party which might give rise to a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter indemnified party against the “Indemnifying Party”)indemnifying party under the indemnification provisions contained herein, give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state stating the nature and basis of such claim, and, if ascertainable, the claim and the actual or estimated amount thereof. Notwithstanding the foregoing, the provided, however, that failure of the Indemnified Party to give such notice shall will not excuse effect the Indemnifying Party’s -------- ------- obligation of the indemnifying party to indemnify andprovide indemnification in accordance with the terms of Section 8.1 or 8.2 unless, in the case of a third party claim, defend the Indemnified Party, except and only to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3that, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third indemnifying party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsis actually prejudiced thereby. In the event the Indemnifying Party disclaims that any action, suit or fails to timely acknowledge its obligations proceeding is brought against any indemnified party with respect to any claim which the indemnifying party may have liability under the indemnification provisions contained herein, the indemnifying party shall, upon written acknowledgement by the Indemnified Party relating indemnifying party that such action, suit or proceeding is an indemnifiable Loss pursuant to Section 8.1 or 8.2, have the right, at the cost and expense of the indemnifying party, to defend such action in the name and on behalf of the indemnified party (using counsel satisfactory to the indemnified party), and, in connection with any third party claimsuch action, the Indemnified Party indemnified party and the indemnifying party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, provided, however, that an indemnified party shall have the right -------- ------- to retain its own counsel, with fees and expenses paid by the indemnifying party, if representation of such indemnified party by counsel retained by the indemnifying party would be inappropriate because of actual or potential differing interests between such indemnified party and the indemnifying party. If the indemnifying party shall fail to defend such action, suit or proceeding, then the indemnified party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim action without prejudice to its right rights to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claimunder Section 8.1 or 8.2 and, in connection therewith, the Indemnifying Party shall defend indemnified party and the same with counsel indemnifying party agree to render to each other such assistance as may reasonably be required in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect order to any third party claim, the Indemnified Party may, at its expense, participate in the ensure proper and adequate defense of such third action. Neither the indemnified party nor the indemnifying party shall make any settlement of any claim and no such third which might give rise to Liability of the indemnifying party claim shall be settled by under the Indemnified Party indemnification provisions contained herein without the prior written consent of the Indemnifying Party each party, which consent shall not be unreasonably withheld withheld, delayed or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsconditioned.
Appears in 1 contract
Samples: Acquisition Agreement (Intermedia Communications of Florida Inc)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Each indemnified Party agrees to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying indemnifying Party prompt written notice of any event or matter for which such claim and the commencement or threatened commencement indemnified Party intends to assert a right of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the indemnification under this Agreement; provided that any failure of the Indemnified Party to give provide such notice shall not excuse reduce the Indemnifying Party’s obligation amount of indemnification to indemnify and, in which the case of a third indemnified party claim, defend the Indemnified Partyis otherwise entitled, except to the extent that such failure prejudices the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure indemnifying party. If a third party claim is made for which an indemnified party is entitled to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party indemnification pursuant to this Section 12.3Article VIII, then the Indemnifying Party indemnifying party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect be entitled to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such claim, and if the amount claimed pursuant to such third party claim and no claim, or the potential liability arising out of such third party claim (in the judgement of indemnified party), does not, after taking into account all other indemnification obligations of the indemnifying party, exceed the indemnifying party's maximum indemnification obligation pursuant to Section 8.5 and if the indemnifying party so chooses, and providing that the indemnifying party acknowledges their obligation to indemnify the indemnified party, then the indemnifying party may assume primary responsibility for the defense of such claim with counsel selected by the indemnifying party and not reasonably objected to by the indemnified party. If the indemnifying party assumes the defense of a third party claim as set forth in this paragraph, then (A) in no event shall the indemnified party admit any liability with respect to, or settle, compromise or discharge, any such claim without the indemnifying party's prior written consent and (B) the indemnified party shall be settled by entitled to participate in, but not control, the Indemnified Party defense of such claim with its own counsel at its own expense. If the indemnifying party does not assume the defense of any such claim, the indemnified party may defend such claim in a manner as it may deem appropriate (including, but not limited to, settling such claim on such terms as the indemnified party may deem appropriate). No settlement of a third party claim involving an assertion that any WHI Indemnification Amount or Shareholder Indemnification Amount is due shall be made without the prior written consent of the Indemnifying Party indemnified party, which consent shall not be unreasonably withheld or delayedgranted unless such settlement may have an adverse effect on the indemnified Party, in such indemnified party's reasonable determination. At any time after the Indemnifying Any claim by either Party acknowledges its obligations for indemnification hereunder (other than with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree Dispute) must be asserted in writing prior to the payment second anniversary of the Closing Date, provided however, that any claims by WHI relating to breach of representations or compromise warranties concerning tax liability may be brought until ninety days following the expiration of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment any applicable statute of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectslimitations.
Appears in 1 contract
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter An indemnified party shall give prompt written notice to the “Indemnified Party”) has received notice of or has acquired knowledge indemnifying party of any claim by any Person not against the indemnified party which might give rise to a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter indemnified party against the “Indemnifying Party”)indemnifying party under the indemnification provisions contained herein, give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state stating the nature and basis of such claim, and, if ascertainable, the claim and the actual or estimated amount thereof. Notwithstanding the foregoing, the provided, however, that failure of the Indemnified Party to give such notice shall will not excuse effect the Indemnifying Party’s obligation of the indemnifying party to indemnify andprovide indemnification in accordance with the terms of Section 5.1 or 5.2 unless, in the case of a third party claim, defend the Indemnified Party, except and only to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3that, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third indemnifying party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligationsis actually prejudiced thereby. In the event the Indemnifying Party disclaims that any action, suit or fails to timely acknowledge its obligations proceeding is brought against any indemnified party with respect to any claim which the indemnifying party may have liability under the indemnification provisions contained herein, the indemnifying party shall, upon written acknowledgement by the Indemnified Party relating indemnifying party that such action, suit or proceeding is an indemnifiable Loss pursuant to Section 5.1 or 5.2, have the right, at the cost and expense of the indemnifying party, to defend such action in the name and on behalf of the indemnified party (using counsel satisfactory to the indemnified party), and, in connection with any third party claimsuch action, the Indemnified Party indemnified party and the indemnifying party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, provided, however, that an indemnified party shall have the right to retain its own counsel, with fees and expenses paid by the indemnifying party, if representation of such indemnified party by counsel retained by the indemnifying party would be inappropriate because of actual or potential differing interests between such indemnified party and the indemnifying party. If the indemnifying party shall fail to defend such action, suit or proceeding, then the indemnified party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim action without prejudice to its right rights to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claimunder Section 5.1 or 5.2 and, in connection therewith, the Indemnifying Party shall defend indemnified party and the same with counsel indemnifying party agree to render to each other such assistance as may reasonably be required in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect order to any third party claim, the Indemnified Party may, at its expense, participate in the ensure proper and adequate defense of such third action. Neither the indemnified party nor the indemnifying party shall make any settlement of any claim and no such third which might give rise to liability of the indemnifying party claim shall be settled by under the Indemnified Party indemnification provisions contained herein without the prior written consent of the Indemnifying Party each party, which consent shall not be unreasonably withheld withheld, delayed or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsconditioned.
Appears in 1 contract
Notice of Claims. Within thirty Buyers shall promptly notify Crompton (30on behalf of all Sellers) days after a Person seeking in writing, in reasonable detail, of all matters which may give rise to the right to indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person hereunder, it being understood that if Sellers do not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party receive written notice of any matter known to Buyers and as to which Buyers or their Affiliates are entitled to indemnification hereunder in time to contest the determination of any such claim liability which is susceptible to being successfully contested, Sellers shall not be obligated to indemnify Buyers or their Affiliates with respect thereto, and the commencement or threatened commencement of such action or proceedingthat, if any. Such in any event, any failure to give written notice shall state the nature and basis relieve Sellers of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except liability with respect thereto to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its prejudice. Provided that Sellers have accepted defense and indemnification obligation and, in the case of a third party claim, its defense obligation Buyers with respect to the claim which was the subject of the Indemnified Party’s notice a matter, Buyers shall not admit any liability with respect to, or whether it disclaims settle, compromise or discharge any such obligations. In the event the Indemnifying Party disclaims matter covered by this Section 12.1, or fails to timely acknowledge its obligations file any papers or provide any correspondence with respect to any claim by the Indemnified Party relating to any third party claimsuch matter, the Indemnified Party without Crompton's (acting on behalf of all Sellers) prior written consent. Sellers shall have the right to settle all indemnifiable matters related to claims by third parties which are susceptible to being settled, and to defend such claim, with through counsel of their own choosing, at their own expense, any action which may be brought by a third party in connection therewith; provided, however, that Sellers shall have no authority to enter into any settlement that requires any payment, action or forbearance on the part of Buyers or any of their Affiliates or that may reasonably be expected to affect Buyers' or their Affiliates' continuation of the Business in substantially the same manner as conducted by Sellers prior to the Closing or that may reasonably be expected to impair the value to Buyers of the Business or any of the Purchased Assets; and provided further, that Buyers shall have the right to have counsel participate in such defense at its own selection, expense. Buyers and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder Sellers shall keep each other informed of all settlement negotiations with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim parties and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent progress of any litigation with third parties. Buyers and Sellers shall not be unreasonably withheld permit each other reasonable access to books, records, facilities and personnel and otherwise cooperate (including by providing personnel for deposition, interview, consultation or delayed. At otherwise as necessary or appropriate) with all reasonable requests of each other in connection with any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any indemnifiable matter resulting from a claim by a third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsparty.
Appears in 1 contract
Samples: Purchase Agreement (Crompton Corp)
Notice of Claims. Within Each Party against whom a claim for indemnity pursuant to this Article 5 shall have been made (each, an “Indemnifying Party”) shall have the right to defend the Person seeking such indemnity (each, an “Indemnified Party”) with counsel of such Indemnifying Party’s choice in respect of any third party claim, so long as (i) such counsel is reasonably satisfactory to the Indemnified Party, (ii) the Indemnifying Party shall have provided written notice to the Indemnified Party, within thirty (30) days after a Person seeking indemnification hereunder (hereinafter receipt by the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Indemnifying Party to this Agreement of the commencement related Purchaser Claims Notice or threatened commencement of any action or proceeding by any Person not a Seller Claims Notice, as applicable, indicating that the Indemnifying Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) will indemnify the Indemnified Party shallin accordance with the terms of this Article 5, if such claim is indemnifiable by the other Party pursuant hereto and (hereinafter the “Indemnifying Party”), give iii) the Indemnifying Party written notice of such claim and conducts the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure defense of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage claim or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such noticematter actively and diligently. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the The Indemnified Party shall have the right to defend such claim, with retain separate co-counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, sole cost and expense and participate in the defense of any such third party claim and no such third party claim or matter; provided, that any related attorneys’ fees shall not be settled by indemnifiable Losses, and; provided, further, however, that, in the Indemnified Party without event that there may be a conflict between the prior written consent positions of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request and the Indemnified Party to agree in writing to conducting the payment or compromise defense of such third party claim claim, or if any of the conditions in clauses (provided such payment or compromise has been previously approved in writing by the third party claimanti), and, in (ii) or (iii) of the event the Indemnifying Party does soimmediately preceding sentence are not met, the Indemnified Party shall promptly agree in writing be entitled to such settlementseparate counsel, unless such settlement would involve a remedy or remedies, other than the payment fees and expenses of money damages which shall be paid by the Indemnifying Party, to which the . Knowledge by an Indemnified Party reasonably objectsof any breach or non-compliance hereunder shall not constitute a waiver of such Indemnified Party’s rights and remedies under this Agreement; provided, that such Indemnified Party shall have notified the applicable Indemnifying Party of such breach or non-compliance in a timely manner and in accordance with the terms of this, unless the failure to timely provide notice shall not materially impair the ability of the Indemnifying Party to investigate or defend the claim. No express or implied waiver by an Indemnified Party of any default hereunder shall in any way be, or be construed to be, a waiver of any other default. The failure or delay of an Indemnified Party to exercise any of its rights granted hereunder regarding any default shall not constitute a waiver of any such right as to any other default, and any single or partial exercise of any particular right granted to an Indemnified Party hereunder shall not exhaust the same or constitute a waiver of any other right provided herein.
Appears in 1 contract
Samples: Master Loan Purchase Agreement (Aurora Acquisition Corp.)
Notice of Claims. Within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.310.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objects.. 18
Appears in 1 contract
Samples: Non Exclusive License, Marketing and Distribution Agreement
Notice of Claims. Within thirty (30a) days after If any claim is made by or against a Person party which, if sustained, would give rise to a liability of the other party under this Article 8, the party seeking indemnification hereunder (hereinafter the “Indemnified "Claiming Party”") has received will promptly cause a written notice of the claim to be delivered to the other party (the "Indemnifying Party"). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party demonstrates that the Indemnifying Party's ability to defend or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if resolve such claim is indemnifiable materially and adversely affected thereby.
(b) In the event that such a claim is made by a third party (a "Third Party Claim") an Indemnifying Party will have the other right to defend the Claiming Party pursuant hereto (hereinafter against the “Third Party Claim with counsel of the Indemnifying Party”)'s choice, give reasonably satisfactory to the Claiming Party, so long as (i) the Indemnifying Party written notice of such claim and notifies the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Claiming Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within within ten (10) business days after the Claiming Party has given notice of receipt of any notice issued by the Indemnified Third Party pursuant Claim to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether (or by such earlier date as may be necessary under applicable procedural rules in order to file a timely appearance and response) that the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in is assuming the defense of such third party claim Third Party Claim; (ii) the Indemnifying Party conducts the defense of the Third Party Claim actively and no such third party claim shall be settled diligently in good faith and at its own cost and expense, and (iii) the Third Party Claim (A) does not involve injunctive, equitable, or other non-monetary relief against the Claiming Party, (B) is not one in which the Claiming Party reasonably determines, after consultation with its counsel, that use of the counsel selected by the Indemnifying Party to represent the Indemnified Party without the prior written consent would be reasonably likely to present such counsel with a conflict of the Indemnifying Party interest, (C) does not relate to or otherwise arise in connection with any criminal or regulatory action or any action in respect of Taxes or by any Governmental Entity, and (D) is not one in which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), andan adverse judgment would, in the event good faith judgment of the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Claiming Party, likely be materially adverse to which the Indemnified Party reasonably objectsClaiming Party's business.
Appears in 1 contract
Samples: Purchase Agreement (Salona Global Medical Device Corp)
Notice of Claims. Within The parties agree that in case any claim is made or any suit or action is commenced by any party that is not a party to this Agreement or an Affiliate thereof with respect to Losses that may give rise to a right of indemnification (a "Third Party Claim"), or any knowledge is received of a state of facts which, if not corrected, may give rise to a right of indemnification, for such party hereunder ("Indemnified Party") from the other party ("Indemnifying Party"), the Indemnified Party will give notice to the Indemnifying Party as promptly as practicable after the receipt by the Indemnified Party of notice or knowledge of such claim, suit, action or state of facts. Notice to the Indemnifying Party under the preceding sentence shall be given no later than fifteen (15) days after receipt by the Indemnified Party of service of process in the event a suit or action has commenced or thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any under all other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if anycircumstances. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the The failure of the Indemnified Party to give such prompt notice shall not excuse the relieve an Indemnifying Party’s Party of its obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party is prejudiced by such failure. Such notice shall describe in reasonable detail the issue that has suffered damage or prejudice by reason may result in indemnification pursuant to Section 7.3 or 7.4. The Indemnified Party shall (i) provide to the Indemnifying Party copies of the Indemnified Party’s failure to give or delay in giving such notice. Within ten all notices and documents (10including court papers) business days of receipt of any notice issued received by the Indemnified Party pursuant relating to this Section 12.3any Third Party Claim that are not separately addressed to the Indemnifying Party and (ii) make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any Third Party Claim or other claim for indemnification, and each party hereunder will render to the other such assistance as it may reasonably require of the other in order to insure prompt and adequate defense of any suit, claim or proceeding based upon a state of facts which may give rise to a right of indemnification hereunder. The Indemnifying Party shall have the right to defend, compromise and settle any Third Party Claim in the name of the Indemnified Party to the extent that the Indemnifying Party may be liable to the Indemnified Party in connection therewith. The Indemnifying Party shall notify the Indemnified Party within ten (10) Business Days of having received written notice pursuant to this Section 7.6(a) of the Third Party Claim whether the Indemnifying Party acknowledges its indemnification obligation andelects to assume the defense of any such Third Party Claim and employ counsel, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by provided that the Indemnified Party relating does not object to any third party claim, the such counsel in a reasonable exercise of its discretion. The Indemnified Party shall have the right to defend such claim, with counsel of employ its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event counsel if the Indemnifying Party timely acknowledges its obligations hereunder with respect so elects to any third party claimassume such defense, but the fees and expenses of such counsel shall be at the Indemnified Party's expense, unless (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; (ii) the Indemnifying Party shall defend not have employed counsel to take charge of the same with defense of such action prior to or promptly after electing to assume the defense thereof, or (iii) in the reasonable judgment of counsel to the Indemnified Party, as evidenced in accordance with this Section. Where writing, there is a reasonable basis for a possible conflict of interest between the Indemnified Party and the Indemnifying Party or there are defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have acknowledged in writing its obligations hereunder with respect the right to any third party claim, the Indemnified Party may, at its expense, participate in direct the defense of such third party claim action on behalf of the Indemnified Party), in any of which events said reasonable fees and no such third party claim expenses shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages borne by the Indemnifying Party, to which the Indemnified Party reasonably objects.
Appears in 1 contract
Notice of Claims. Within Any Person entitled to indemnification pursuant to this Article IX (the “Indemnified Party”) shall notify any other Person (or Persons) who is (are) obligated to provide indemnification hereunder (the “Indemnifying Party”) promptly after becoming aware of any Losses which the Indemnified Party shall have determined has given or could give rise to a claim for indemnification under Section 9.2 or Section 9.3. Such notice shall include an estimate of the Losses that the Indemnified Party has determined may be incurred (the “Claim Notice”) and such Claim Notice shall specify in reasonable detail, to the extent reasonably practicable and to the extent within the Knowledge of the Indemnified Party, each individual item of Loss included in the amount so stated, the date such item was paid, the basis for any anticipated liability and the nature of the misrepresentation, and the breach of warranty, breach of covenant or claim to which each such item is related. It is agreed that no delay on the part of the Indemnified Party in notifying any Indemnifying Party of a claim (including any third party claim) will relieve the Indemnifying Party thereby unless (and then only to the extent) said Indemnifying Party is actually and materially prejudiced by such failure to give notice. It is agreed that no Person shall be liable for any claim for indemnification pursuant to this Article IX unless the Claim Notice is delivered by the Indemnified Party to the Indemnifying Party prior to the expiration of the applicable survival period. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of Losses described in such notice, or fails to notify the Indemnified Party within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice delivery of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation anddisputes the claim or the estimated amount of Losses described in such notice, the estimated Losses in the case of a third party claim, its defense obligation with respect to the claim which was the subject of amount specified in the Indemnified Party’s notice or whether it disclaims such obligations. In the event will be conclusively deemed a liability of the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend pay the same amount of such Losses to the Indemnified Party within ten (10) Business Days after the expiration of such thirty (30) day period. If the Indemnified Party has timely disputed its liability with counsel respect to such claim or the estimated amount of Losses, and such dispute has not been resolved within sixty (60) days, then the Indemnifying Party and the Indemnified Party may seek legal redress in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsSection 10.8.
Appears in 1 contract
Samples: Stock and Interest Purchase Agreement (Wellpoint Inc)
Notice of Claims. Within In the event that (i) any claim is asserted or instituted against any Indemnified Party by any Person other than the Parties to this Agreement or their Affiliates which could give rise to Damages for which an Indemnifying Party could be liable to an Indemnified Party for Damages under this Agreement (such claim, demand or Proceeding, a “Third Party Claim”) or (ii) any Indemnified Party under this Agreement shall have a claim to be indemnified for Damages by any Indemnifying Party under this Agreement which does not involve a Third Party Claim (such claim, together with Third Party Claims, “Claims”), the Indemnified Party shall with reasonable promptness send to the Indemnifying Party a written notice specifying the nature of such Claim, the amount of Damages sought in such Claim, if known, and the provisions of this Agreement in respect of which such right of indemnification is claimed or arises (a “Claim Notice”), provided, that a delay or failure in notifying the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Agreement except to the extent that the Indemnifying Party demonstrates such delay or failure shall have caused the Damages for which the Indemnifying Party is obligated to be greater than such Damages would have been had the Indemnified Party given the Indemnifying Party timely notice and only to the extent of the increased amount of Damages.
(i) If the Stockholders’ Representative does not object in writing within the thirty (30) calendar day period after delivery by Buyer or Buyer Parent of an initial Claim Notice and within the fifteen (15) calendar day period after delivery by Buyer or Buyer Parent of a second Claim Notice (which shall not be delivered until the expiration of the thirty (30) day period relating to the initial Claim Notice), such failures to so object shall be an irrevocable acknowledgment by the Stockholders’ Representative on behalf of Target Stockholders that the Buyer Indemnitees identified in the Claim Notice are entitled to the full amount of the claim for Damages set forth in such Claim Notice. If Buyer or Buyer Parent does not object in writing within the thirty (30) calendar day period after delivery by the Stockholders’ Representative of an initial Claim Notice and within the fifteen (15) calendar day period after delivery by the Stockholders’ Representative of a second Claim Notice (which shall not be delivered until the expiration of the thirty (30) day period relating to the initial Claim Notice), such failures to so object shall be an irrevocable acknowledgement by Buyer and Buyer Parent that the Seller Indemnitees identified in the Claim Notice are entitled to the full amount of the claim for Damages set forth in such Claim Notice.
(ii) After the expiration of fifteen (15) calendar days after receipt of a second Claim Notice from the Stockholders’ Representative, Buyer Parent shall make delivery of cash equal to the amount of Damages claimed in the Claim Notice; provided that no such payment shall be made if Buyer Parent shall object in a written statement to the claim made in the Claim Notice (a “Buyer Objection Notice”), and such Buyer Objection Notice shall have been delivered to the Stockholders’ Representative prior to the expiration of such fifteen (15) calendar day period.
(iii) After the expiration of fifteen (15) calendar days after receipt of a second Claim Notice from the Buyer or Buyer Parent, Stockholders’ Representative shall make delivery of cash equal to the amount of Damages claimed in the Claim Notice; provided that no such payment shall be made if Stockholders’ Representative shall object in a written statement to the claim made in the Claim Notice (a “Stockholders’ Objection Notice” and, together with Buyer Objection Notice, an “Objection Notice”), and such Stockholders’ Objection Notice shall have been delivered to the Buyer and Buyer Parent prior to the expiration of such fifteen (15) calendar day period.
(iv) If Buyer or Buyer Parent shall deliver a Claim Notice and Buyer Parent owes any portion of the indemnification payments required to be paid by the Buyer Parent pursuant to this Article 10 hereof, Buyer Parent shall be entitled to set-off the amount set forth in the Claim Notice.
(i) If an Indemnifying Party objects in writing to any claim (or part of any claim) for indemnification made by an Indemnified Party in any Objection Notice, the Indemnified Party and Indemnifying Party shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims. If the Indemnified Party and Indemnifying Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties.
(ii) If no such agreement has been reached within thirty (30) days after delivery of an Objection Notice, either Buyer Parent or the Stockholders’ Representative may demand arbitration of the matter in a Person seeking indemnification hereunder proceeding administered by the American Arbitration Association (hereinafter the “Indemnified PartyAAA”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement under its commercial arbitration rules, unless the amount of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim Damage that is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was at issue is the subject of the Indemnified Party’s notice or whether it disclaims a pending litigation involving a Third Party Claim, in which event such obligationsarbitration shall be resolved as set forth in Section 10.4(c) below. In the event that, within fifteen (15) days after submission of any dispute to arbitration, Buyer Parent and the Indemnifying Party disclaims or Stockholders’ Representative cannot mutually agree on one arbitrator, then, within fifteen (15) days after the end of such fifteen (15) day period, Buyer Parent and the Stockholders’ Representative shall each select one arbitrator. The two arbitrators so selected shall select a third arbitrator. If the Stockholders’ Representative fails to timely acknowledge its obligations with respect select an arbitrator during this fifteen (15) day period, then the parties agree that the arbitration will be conducted by one arbitrator selected by Buyer Parent. If Buyer Parent fails to any claim select an arbitrator during this fifteen (15) day period, then the parties agree that the arbitration will be conducted by one arbitrator selected by the Indemnified Party Stockholders’ Representative. Each arbitrator must be certified as an arbitrator by the AAA.
(iii) Any such arbitration shall be held in Orange County, California, under the rules then in effect of the AAA. The arbitrator(s) shall determine how all expenses relating to any third party claimthe arbitration shall be paid, including the respective expenses of each party, the Indemnified Party fees of each arbitrator and the administrative fee of the AAA. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the right authority to defend such claimimpose sanctions, with counsel of its own selectionincluding attorneys’ fees and costs, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Sectionextent as a competent court of law or equity, should the arbitrators or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. Where The decision of the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled final, binding, and conclusive upon the parties to this Agreement. Such conclusions shall set forth the award, judgment, decree or order awarded by the Indemnified Party without the prior written consent arbitrator(s). Within fifteen (15) days of a decision of the Indemnifying Party which consent arbitrator(s) requiring payment by one party to another, such party shall not make the payment to such other party.
(iv) Judgment upon any award rendered by the arbitrator(s) may be unreasonably withheld or delayedentered in any court having jurisdiction. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect The foregoing arbitration provision shall apply to any third party claim, the dispute between Indemnifying Party may request the Parties and Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsParties under this Article X hereof.
Appears in 1 contract
Notice of Claims. Within thirty If a claim (30a “Claim”) days after is proposed to be made by a Person seeking party entitled to indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of against the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement party from which indemnification is claimed (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), the Indemnified Party shall give written notice (a “Claim Notice”) to the Indemnifying Party as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to a Loss for which indemnification may be sought under this Article XIII. If any legal proceeding is commenced 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) Business Days after the service of the citation or summons). The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party demonstrates actual prejudice caused by such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereoffailure. Notwithstanding the foregoing, a Claim Notice that relates to a representation or warranty that is subject to the survival period set forth in Section 13.1 must be made within such survival period, whether or not the Indemnifying Party is prejudiced by any failure to give a Claim Notice relating thereto. A Claim Notice shall describe in reasonable detail the nature of the Claim, including an estimate of the amount of Losses that have been or may be suffered or incurred by the Indemnified Party attributable to give such notice shall not excuse Claim, the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason basis of the Indemnified Party’s failure to give or delay request for indemnification under this Agreement and all information in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party possession relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsClaim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Huron Consulting Group Inc.)
Notice of Claims. Within thirty (30a) days after a Person seeking indemnification hereunder If any of the Persons to be indemnified under this Section 3 (hereinafter the “"Indemnified Party”") has received notice of suffered or has acquired knowledge of incurred any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claimLosses, the Indemnified Party shall have so notify the right to defend party from whom indemnification is sought (the "Indemnifying Party") promptly in writing describing such claimLosses, with counsel the amount or estimated amount thereof, if known or reasonably capable of its own selectionestimation, and compromise the method of computation of such claim without prejudice Losses, all with reasonable particularity and containing a reference to its right to indemnification hereunderthe provisions of this Agreement or any other agreement, instrument or certificate delivered pursuant hereto in respect of which such Losses shall have occurred. In the event the Indemnifying If any Action is instituted by or against a Third Party timely acknowledges its obligations hereunder (a "Third Party Claim") with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, which the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect intends to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does soseek indemnification under this Section 3, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve notify (a remedy or remedies, other than the payment of money damages by "Third Party Claim Notice") the Indemnifying Party, Party of such Action and tender to which the Indemnifying Party the conduct or defense of such Action. A failure by the Indemnified Party to give notice and to tender the conduct or defense of the Action in a timely manner pursuant to this Section 3.3(a) shall not limit the obligation of the Indemnifying Party under this Section 3, except to the extent such Indemnifying Party is prejudiced thereby.
(b) To the extent not prohibited by applicable Law or not jeopardizing attorney-client privilege, (i) each Party will provide to the respective other Party notice and an opportunity to comment before such Party files any report, notification or filing with any Governmental Authority or Third Party in connection with an event that would be reasonably objectslikely to result in Losses subject to the indemnification provisions of this Section 3, and (ii) in the event such Party is required to file a report, notification or filing immediately, it will provide simultaneous notice to the respective other Party when it files the report with such Governmental Authority or Third Party.
Appears in 1 contract
Samples: Manufacturing Technology Transfer Agreement (Sorrento Therapeutics, Inc.)
Notice of Claims. Within 11.4.1. Any Indemnified Party shall promptly (and, notwithstanding anything to the contrary contained herein, in any event prior to the survival date of the particular representation, warranty, covenant or agreement to which a particular Claim relates as set forth in Section 11.2 above) give to the Purchaser, in the case of indemnification sought by any Seller Indemnified Party, or give to Seller, in the case of indemnification sought by any Purchaser Indemnified Party, including with respect to a Third Party Claim, a written notice describing in reasonable detail the facts giving rise to any Claims for indemnification hereunder, and shall include in such notice (if then known) the amount or the method of computation of the amount of the Losses which are the subject to such Claim, and a reference to the provision of this Agreement upon which such Claim is based; provided, that the failure to give such a notice shall extinguish the obligation to provide indemnification hereunder with respect to such Claim, but only to the extent such failure results in prejudice to the ability to defend such Claim.
11.4.2. In the event that a third party has made a Claim which an Indemnified Party believes gives rise to a right to be indemnified pursuant to this Article XI (a “Third Party Claim”), the following shall apply:
(a) Such Indemnified Party shall promptly notify the Seller or the Purchaser, as the case may be (the “Indemnifying Party Representative”), of such Third Party Claim as provided in Section 11.4.1. The Indemnifying Party Representative at its sole expense may assume the defense thereof by notifying the Indemnified Party in writing within thirty (30) days after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received notice of or has acquired knowledge of any claim it being notified by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallof the existence of the Third Party Claim. Upon the giving of such notice, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice Representative will undertake, conduct and control, through counsel of such claim its own choosing and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainableat its own expense, the amount thereof. Notwithstanding the foregoing, the failure of settlement or defense thereof and in which event the Indemnified Party to give such notice shall not excuse cooperate with the Indemnifying Party Representative in connection therewith; provided, that the Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and paid at its own expense; provided, further, that if in the reasonable opinion of counsel for such Indemnified Party’s , there is a reasonable likelihood of a conflict of interest between the Indemnifying Party Representative and the Indemnified Party, the reasonable fees and expenses of one counsel and one local counsel, if applicable, to such Indemnified Party in connection with such defense shall be subject to recovery pursuant to the indemnification provided in this Article XI.
(b) The Indemnifying Party Representative shall have full right to enter into any compromise or settlement that is dispositive of the matter involved; provided, however, that except for the settlement of a Third Party Claim that involves (i) no obligation to indemnify of any Indemnified Party other than the payment of money and, solely in the case of indemnification of the Purchaser Indemnified Parties, is fully covered by the monies then remaining in the Indemnity Escrow Account, and (ii) a third party claim, defend release from all liability in favor of the Indemnified Party, except to the extent the Indemnifying Party has suffered damage Representative shall not settle or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of compromise any notice issued by the Indemnified Third Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claim, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party Claim without the prior written consent of the Indemnified Party. No Indemnifying Party which Representative may consent shall to entry of any judgment or enter into any settlement in respect of a Third Party Claim that does not be unreasonably withheld or delayed. At any time after include a release of the Indemnified Party from all liability in respect of such Third Party Claim.
(c) If the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise Representative does not so assume control of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does sodefense, the Indemnified Party shall promptly agree in writing to conduct and control such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which defense and the Indemnified Party reasonably objectsshall have full right to enter into any compromise or settlement on its behalf that is dispositive of the matter involved; provided that the Indemnifying Party Representative shall be entitled to a right to participate in any such Claim or Proceeding at its own cost and expense and approve any proposed settlements.
(d) The party controlling such defense shall keep the other party advised of the status of such Proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sensata Technologies Holding N.V.)
Notice of Claims. Within thirty (30) days Promptly after a Person seeking indemnification hereunder (hereinafter the “Indemnified Party”) has received receipt by an Investor Indemnitee or Company Indemnitee of notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement of any action or proceeding by (including any Person not a Party to this Agreement (“third party claim”governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party Company Indemnitee, as applicable, shall, if such a claim for an Indemnified Liability in respect thereof is indemnifiable by to be made against any indemnifying party under this Section 6, deliver to the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party indemnifying party a written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, ; but the failure to so notify the indemnifying party will not relieve it of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, liability under this Section 6 except to the extent the Indemnifying Party has suffered damage or prejudice indemnifying party is prejudiced by reason of the Indemnified Party’s failure to give or delay in giving such noticefailure. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third The indemnifying party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third party claim, the Indemnified Party shall have the right to defend such claimparticipate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel of mutually reasonably satisfactory to the indemnifying party and Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee or Company Indemnitee shall have the right to retain its own selectioncounsel with the actual and reasonable third party fees and expenses of not more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of Investor Indemnitee or Company Indemnitee and compromise the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor Indemnitee or Company Indemnitee and any other party represented by such counsel in such proceeding. Investor Indemnitee or Company Indemnitee shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim without prejudice by the indemnifying party and shall furnish to its right the indemnifying party all information reasonably available to indemnification hereunderInvestor Indemnitee or Company Indemnitee which relates to such action or claim. In The indemnifying party shall keep Investor Indemnitee or Company Indemnitee reasonably apprised as to the event status of the Indemnifying Party timely acknowledges its obligations hereunder defense or any settlement negotiations with respect to any third thereto. No indemnifying party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the Indemnified Party indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of Investor Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the Indemnifying Party which consent giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall not be unreasonably withheld subrogated to all rights of Investor Indemnitee or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder Company Indemnitee with respect to any all third party claimparties, the Indemnifying Party may request the Indemnified Party to agree in writing firms or corporations relating to the payment or compromise of such third party claim (provided such payment or compromise matter for which indemnification has been previously approved in writing made. The indemnification required by this Section 6 shall be made by periodic payments of the third party claimant)amount thereof during the course of the investigation or defense, and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the as and when bills are received and payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectstherefor is due.
Appears in 1 contract
Notice of Claims. Within A Party seeking indemnification pursuant to this Article 8 (an “Indemnified Party”) shall give prompt notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the commencement or assertion of any claim by an unaffiliated third party (which in no event includes any claims by any BioProgress Indemnities or FMC Indemnitees) (“Third Party Claim”) in respect of which indemnity may be sought hereunder, shall give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, and shall not make any admission concerning such Third Party Claim, unless such admission is required by applicable law or legal process, including in response to questions presented in depositions or interrogatories. Any admission made by the Indemnified Party, except for an admission required by applicable law or legal process, or the failure to give such notice shall relieve the Indemnifying Party of any liability hereunder only to the extent that the ability of the Indemnifying Party to defend such Third Party Claim is prejudiced thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party within thirty (30) days after a Person seeking indemnification hereunder (hereinafter of receipt of notice from the “Indemnified Party”) has received notice of or has acquired knowledge of any claim by any Person not a Party to this Agreement of the commencement or threatened commencement assertion of any action or proceeding a Third Party Claim, to assume and conduct the defense of such Third Party Claim with counsel selected by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), give the Indemnifying Party written notice of such claim and the commencement or threatened commencement of such action or proceeding, if any. Such notice shall state the nature and basis of such claim, and, if ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of the Indemnified Party reasonably acceptable to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except ; provided that (A) the Third Party Claim involves (and continues to the extent involve) solely monetary damages and the Indemnifying Party has suffered damage or prejudice by reason of expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify be solely obligated to satisfy and discharge the Indemnified Third Party whether Claim; (B) the defense of such Third Party Claim by the Indemnifying Party acknowledges its indemnification obligation andwill not, in the case of a third party claim, its defense obligation with respect to the claim which was the subject reasonable judgment of the Indemnified Party, have any continuing material adverse effect on the Indemnified Party’s notice or whether it disclaims such obligations. In the event business; and (C) the Indemnifying Party disclaims or fails makes reasonably adequate provision to timely acknowledge its obligations with respect to any claim by ensure the Indemnified Party relating of the ability of the Indemnifying Party to satisfy the full amount of any third party claimadverse monetary judgment that may result (the conditions set forth in clauses (A), (B) and (C) are collectively referred to as the “Litigation Conditions”). The Indemnified Party shall not settle such Third Party Claim within such thirty (30) day period. Subject to the initial and continuing satisfaction of the Litigation Conditions, the Indemnifying Party shall have full control of such Third Party Claim, including settlement negotiations and any legal proceedings. If the Indemnifying Party does not assume the defense of such Third Party Claim in accordance with this Article 8.5, the Indemnified Party may defend the Third Party Claim. The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to defend such claimparticipate in (but not control), with counsel of at its own selectionexpense (subject to the immediately succeeding sentence), and compromise such claim the defense of any Third Party Claim which the other is defending as provided in this Agreement. The Indemnifying Party shall not be liable for any litigation costs or expenses incurred, without prejudice to its right to indemnification hereunder. In consent, by the event Indemnified Party where the action or proceeding is under the control of the Indemnifying Party; provided, however, that if the Indemnifying Party timely acknowledges its obligations hereunder with respect fails to any third party claim, the Indemnifying take reasonable steps necessary to defend such Third Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimClaim, the Indemnified Party maymay assume its own defense, at its expenseand the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith. The Indemnifying Party, participate in if it shall have assumed the defense of any Third Party Claim as provided in this Agreement, shall not consent to a settlement of, or the entry of any judgment arising from, any such third party claim and no Third Party Claim to the extent such third party claim shall be settled by Third Party Claim involves equitable or other non-monetary relief from the Indemnified Party Party. No party shall, without the prior written consent of the Indemnifying other Party, enter into any compromise or settlement which commits the other Party which consent shall not be unreasonably withheld to take, or delayedto forbear to take, any action. At any time after Whether the Indemnifying Party acknowledges its obligations hereunder chooses to defend or prosecute any Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Parties agree and acknowledge that the provisions of Articles Four and Eight represent the Indemnified Party’s exclusive recourse with respect to any third party claim, the Indemnifying Party may request Losses for which indemnification is provided to the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsunder this Agreement.
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Notice of Claims. Within thirty All claims for indemnification hereunder shall be resolved in accordance with the following procedures:
(30a) days after a Person If the party seeking indemnification hereunder (hereinafter the “Indemnified Party”"INDEMNIFIED PARTY") has received incurred or reasonably believes that it may incur any Losses, it shall deliver promptly written notice to the indemnifying party (the "INDEMNIFYING PARTY"), setting forth the nature and amount of the Losses or potential Losses, if possible (a "CLAIM NOTICE"). If an Indemnified Party receives notice of or has acquired knowledge of any a third-party claim by any Person not a Party for which it intends to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shallseek indemnification hereunder, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the “Indemnifying Party”), it shall give the Indemnifying Party written notice of such claim and claim, so that the commencement or threatened commencement Indemnifying Party's defense of such action claim under this Agreement may be timely instituted. The failure by an Indemnified Party to provide such written notice shall not constitute a waiver of the Indemnified Party's right to indemnity unless such failure has prejudiced the Indemnifying Party's ability to defend such claim, and then only to the extent of such prejudice.
(b) If, after receiving a Claim Notice, the Indemnifying Party desires to dispute such claim or proceedingthe amount claimed in the Claim Notice, if anyit shall deliver to the Indemnified Party a written objection to such claim or payment setting forth the basis for disputing such claim or payment. Such notice shall state be delivered within 30 days after the nature and basis date the Claim Notice to which it relates is received by the Indemnifying Party. If no such notice is received within the aforementioned 30-day period, the Indemnified Party shall be entitled to payment for such Losses from the Indemnifying Party within 10 days of the end of such 30-day objection period.
(c) If the Indemnifying Party shall agree that it is responsible for all amounts that may be recovered in connection with a third-party claim, andaction or suit (including waiving any deductible or limit that might otherwise apply under this Article V) the Indemnifying Party shall have the right to conduct and control through counsel of its own choosing, which counsel shall be reasonably acceptable to the Indemnified Party, any third-party claim, action or suit; provided, that the Indemnifying Party (i) demonstrates to the Indemnified Party's reasonable satisfaction that it has the financial ability to mount an appropriate defense of such claim and (ii) diligently contests and defends such claim. The Indemnified Party shall be entitled at any time, at its own cost and expense (except that such cost and expense shall be paid by the Indemnifying Party if ascertainablethe Indemnified Party reasonably determines that the Indemnifying Party is not adequately representing or, because of a conflict of interest, may not adequately represent the amount thereofinterests of the Indemnified Party) to participate in such defense and to be represented by attorneys of its choosing. Notwithstanding Except with the foregoing, the failure prior written consent of the Indemnified Party to give such notice shall not excuse the no Indemnifying Party’s obligation to indemnify and, in the case defense of such claim or litigation, shall consent to entry of any judgment or order, interim or otherwise, or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Indemnified Party or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a third party claim, defend release from all liability with respect to such claim or litigation.
(d) In the Indemnified Party, except to the extent event that the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure does not elect to give or delay in giving such notice. Within ten (10) business days of receipt of defend against any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to any claim by the Indemnified Party relating to any third third-party claim, the Indemnified Party shall have the right to may defend such claim, with counsel of its own selection, and compromise against such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, in such manner as it may deem appropriate and the Indemnifying Party shall defend the same be liable for any legal expenses reasonably incurred in connection with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claimsuch defense; PROVIDED, HOWEVER, that the Indemnified Party mayshall not, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party Party, which consent shall not be unreasonably withheld withheld, settle or delayed. At any time after consent to the Indemnifying Party acknowledges its obligations hereunder entry of judgment with respect to any third such third-party claim.
(e) In the event of any claim by a third party, the Indemnifying Party may request parties hereto agree that they will cooperate fully with each other in connection with the Indemnified Party to agree in writing to the payment defense or compromise settlement of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, in the event the Indemnifying Party does so, the Indemnified Party shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsmatter.
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Samples: Purchase Agreement (Motient Corp)
Notice of Claims. Within thirty (30a) days after If a Person Covered Party seeking indemnification hereunder receives notice of the assertion of any Claim (hereinafter the a “Indemnified PartyClaim Notice”) has received notice of or has acquired knowledge of any claim by any Person not with respect to which a Party party required to this Agreement of the commencement or threatened commencement of any action or proceeding by any Person not a Party to this Agreement provide indemnification hereunder (“third party claim”) or has acquired knowledge of any other claim hereunder against another Party hereto (“first party claim”) the Indemnified Party shall, if such claim is indemnifiable by the other Party pursuant hereto (hereinafter the an “Indemnifying Party”)) may be obligated under this Agreement to provide indemnification, such Covered Party shall give such Indemnifying Party prompt written notice thereof; provided, however, that the failure of any Covered Party to give such Claim Notice shall not relieve any Indemnifying Party of its obligations under this Article IX, except and only to the extent that the Indemnifying Party written notice forfeits rights or defenses by reason of such claim and the commencement or threatened commencement of such action or proceeding, if anyfailure. Such notice Claim Notice shall state describe the nature and basis of such claimClaim in reasonable detail, and, if ascertainablepracticable, shall indicate the estimated amount of Damages that have been or may be sustained by such Covered Party.
(b) An Indemnifying Party, at such Indemnifying Party’s own expense (including all legal and other expenses) and through counsel reasonably acceptable to the Covered Party, may elect to defend any Third Party Claim; and if it so elects, it shall, within 20 calendar days after receiving notice of such Third Party Claim (or sooner, if the nature of such Third Party Claim so requires), notify the Covered Party of its intent to do so, and such Covered Party shall cooperate in the defense of such Third Party Claim; provided, that such notice shall include an acknowledgment from the Indemnifying Party that such Indemnifying Party is undertaking and will prosecute the defense of the Claim and confirming that based on the information available as between the Covered Party and such Indemnifying Party, such Indemnifying Party will, subject to the provisions of Section 9.4, be able to pay the full amount of potential Liability in connection with any such Claim (including for the Legal Proceeding and all Legal Proceedings on appeal or other review which counsel for the Covered Party may reasonably consider appropriate); provided, further, such Indemnifying Party shall not have the right to defend or direct the defense of such Claim that (i) is asserted directly by or on behalf of a Person that is a supplier or customer of Seller, Buyer or their Affiliates or (ii) seeks an injunction or other equitable relief against the Covered Party. After notice from an Indemnifying Party to a Covered Party of its election to assume the defense of a Third Party Claim, such Indemnifying Party shall not be liable to such Covered Party for any legal or other expenses subsequently incurred by such Covered Party in connection with the defense thereof; provided, however, that such Covered Party shall have the right to employ one counsel to represent such Covered Party and all other Persons entitled to indemnification in respect of such Claim hereunder if, in the reasonable opinion of counsel to the Covered Party, (y) there are legal defenses available to a Covered Party that are different from or additional to those available to the Indemnifying Party or (z) a conflict of interest between such Covered Party and such Indemnifying Party exists in respect of such Claim which would make representation of the Indemnifying Party and the Covered Party impermissible under applicable standards of professional conduct, and in either of those events the reasonable fees and expenses of one such separate counsel for all Covered Parties shall be paid by such Indemnifying Party. If the Indemnifying Party does not notify the Covered Party within such 20 calendar days (or sooner, if the nature of such Third Party Claim so requires), the amount thereofCovered Party shall have the right to undertake, at the Indemnifying Party’s cost, risk and expense, the defense, compromise or settlement of the Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Covered Party, enter into any settlement that is not exclusively monetary and shall be paid entirely by the Indemnifying Party and does not include as an unconditional term thereof the giving by the Person or Persons asserting such Claim to all Covered Parties of an unconditional release from all Liability with respect to such Claim or consent to entry of any judgment. Notwithstanding the foregoing, the failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify and, in the case of a third party claim, defend the Indemnified Party, except to the extent the Indemnifying Party has suffered damage or prejudice by reason of the Indemnified Party’s failure to give or delay in giving such notice. Within ten (10) business days of receipt of any notice issued by the Indemnified Party pursuant to this Section 12.3, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party acknowledges its indemnification obligation and, in the case of a third party claim, its defense obligation with respect not be entitled to the claim which was the subject of the Indemnified Party’s notice or whether it disclaims such obligations. In the event the Indemnifying Party disclaims or fails to timely acknowledge its obligations with respect to control any claim by the Indemnified Party Claim relating to Taxes of Buyer or Seller for any third party claimTax or accounting period ending on or after the Closing Date and shall not be entitled to settle, either administratively or after the Indemnified Party shall have commencement of litigation, any Claim for Taxes which could adversely affect the right to defend such claimLiability of Buyer or Seller for Taxes for any Tax or accounting period (or portion thereof) ending on or after the Closing Date, with counsel of its own selection, and compromise such claim without prejudice to its right to indemnification hereunder. In the event the Indemnifying Party timely acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party shall defend the same with counsel in accordance with this Section. Where the Indemnifying Party shall have acknowledged in writing its obligations hereunder with respect to any third party claim, the Indemnified Party may, at its expense, participate in the defense of such third party claim and no such third party claim shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. At any time after the Indemnifying Party acknowledges its obligations hereunder with respect to any third party claim, the Indemnifying Party may request the Indemnified Party to agree in writing to the payment or compromise of such third party claim (provided such payment or compromise has been previously approved in writing by the third party claimant), and, Buyer; in the event the Indemnifying Party does soof a conflict between this Section 9.3(b) and Section 8.2(e), the Indemnified Party Section 8.2(e) shall promptly agree in writing to such settlement, unless such settlement would involve a remedy or remedies, other than the payment of money damages by the Indemnifying Party, to which the Indemnified Party reasonably objectsgovern.
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