Notification and Defense of Claims. (a) If Indemnitee receives notice, otherwise than from the Company, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Company from, or otherwise affect, the obligations the Partnership may have to indemnify Indemnitee under this Agreement, unless the Company can establish that the failure has resulted in actual prejudice to the Company. (b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder: (1) the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding; (2) the Company or that Related Enterprise, or either of them, will be entitled to assume the defense of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee; and (3) if clause (2) above entitles the Company or that Related Enterprise to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Company will not be liable to Indemnitee hereunder for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless: (1) the Company has authorized Indemnitee in writing to retain that counsel; (2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or (3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing. (c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.
Appears in 3 contracts
Samples: Indemnification Agreement (K-Sea GP Holdings LP), Indemnification Agreement (K-Sea Transportation Partners Lp), Indemnification Agreement (K-Sea Tranportation Partners Lp)
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; provided, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do sohowever, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that the failure or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has resulted in actual prejudice to a material adverse effect on the Company's ability to promptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.any
Appears in 3 contracts
Samples: Indemnification Agreement (Friede Goldman International Inc), Indemnification Agreement (Conrad Industries Inc), Indemnification Agreement (Sierra Well Service Inc)
Notification and Defense of Claims. (a) If The failure by the Indemnitee receives notice, otherwise than from the Company, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly timely notify the Company of any action, suit or proceeding referred to in writing Section 2(a) or 2(b) or any claim referred in Section 3 for which Indemnitee seeks or may seek indemnification or advancement of the nature andexpenses under this Agreement, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will shall not relieve the Company fromfrom any liability hereunder unless, or otherwise affectand only to the extent that, the obligations the Partnership may have to indemnify Indemnitee under this AgreementCompany did not otherwise learn of such action, unless suit, proceeding or claim and such failure results in forfeiture by the Company can establish that the failure has resulted in actual prejudice to the Companyof substantial defenses, rights or insurance coverage.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate at its own expense in that Proceeding;
(2the defense of any action, suit or proceeding referred to in Section 2(a) the Company or that Related Enterprise, 2(b) or either any claim referred to in Section 3 for which Indemnitee seeks or may seek indemnification or advancement of them, will be entitled expenses under this Agreement or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of all Claimscounsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, other (b) the named parties in any such action, suit, proceeding or claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to him that are different from or in addition to those available to the Company, or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than (A) Company Claimsone law firm plus, if anyapplicable, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, local counsel in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to assume the defense respect of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)particular action, suit, proceeding or claim) at the Company’s expense. The Company will shall not be liable to Indemnitee hereunder under this Agreement for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Indemnitee which Indemnitee effects threatened or pending action, suit, proceeding or claim without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee shall not, without Indemnitee’s the prior written consentconsent of the Indemnitee, effect any settlement of any threatened or pending action, suit, proceeding or claim to which the Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such action, suit, proceeding or claim. Neither the Company nor Indemnitee will shall unreasonably delay or withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any such settlement the other party proposes to effectthat does not provide a complete and unconditional release of Indemnitee.
Appears in 2 contracts
Samples: Indemnification Agreement (Brush Engineered Materials Inc), Indemnification Agreement (Brush Engineered Materials Inc)
Notification and Defense of Claims. (a) If Notice Promptly after receipt by Indemnitee receives noticeof notice of the commencement of any Claim, otherwise than from the CompanyIndemnitee shall, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify made against the Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Company from, or otherwise affect, the obligations the Partnership may have to indemnify Indemnitee under this Agreement, unless notify the Company can establish that the failure has resulted in actual prejudice (addressed to the Chief Executive Officer) of the commencement thereof; but the omission so to notify the Company will only relieve the Company of the obligations that it has to Indemnitee under this Agreement (i) if, and to the extent that, the Company has been materially prejudiced by Indemnitee’s failure to so notify the Company, and (ii) as provided in Section 4(c). Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power.
(b) Except Defense With respect to any Claim as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereunder:
(1) notifies the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding the commencement thereof, the Company will be entitled to participate in the Claim at its own expense in that Proceeding;
(2) and except as otherwise provided below, to the extent the Company or that Related Enterpriseso wishes, or either of them, will be entitled to it may assume the defense of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall thereof with counsel reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)Claim, the Company will shall not be liable to Indemnitee hereunder under this Agreement or otherwise for any fees Expenses subsequently incurred by Indemnitee in connection with the defense of such Claim other than reasonable costs of investigation or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticeas otherwise provided below. Indemnitee will shall have the right to employ Indemnitee’s own legal counsel in that Proceedingsuch Claim, but, as clause (3) but all Expenses related thereto incurred after notice from the Company of its assumption of the preceding sentence provides, will bear the fees and expenses of that counsel defense shall be at Indemnitee’s expense unless:
: (1i) the employment of legal counsel by Indemnitee has been authorized by the Company; (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Claim; (iii) after a Change of Control, the employment of counsel by Indemnitee has authorized Indemnitee in writing to retain that counsel;
been approved by the Special Counsel; or (2iv) the Company shall not within a reasonable period of time actually in fact have employed counsel to assume the defense of those Claims; or
(3) such Claim, in each of which cases all Expenses of the Claim shall be borne by the Company. The Company shall not be entitled, without the consent of Indemnitee, to assume the defense of any Claim brought by or on behalf of the Company, or as to which Indemnitee shall have made the determination provided for in (Aii) reasonably concluded that a conflict of interest may exist between Indemnitee and above or under the Company as to the defense of one or more of those Claims circumstances provided for in (iii) and (Biv) communicated that conclusion to the Company in writingabove.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.
Appears in 2 contracts
Samples: Indemnification Agreement (Global Defense Technology & Systems, Inc.), Indemnification Agreement (Global Defense Technology & Systems, Inc.)
Notification and Defense of Claims. (a) If Indemnitee receives notice, otherwise than from the CompanyCompany or the Partnership, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company and the Partnership in writing of the nature and, to Indemnitee’s 's knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Company or the Partnership from, or otherwise affect, the obligations the Company or the Partnership may have to indemnify Indemnitee (1) under this Agreement, unless the Company and the Partnership can establish that the failure has resulted in actual material prejudice to the CompanyCompany and the Partnership or (2) otherwise than under this Agreement.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) the Company Company, the Partnership and any Related Enterprise that also may will be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding;
(2) the Company Company, the Partnership or that Related Enterprise, or either any of them, will be entitled to assume the defense of all Claims, Claims (other than (Ai) Company Claims, if any, and (Bii) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion described in clause (3C) of the next sentence describessentence), in that Proceeding against Indemnitee Indemnitee, with counsel satisfactory to Indemnitee, by prompt written notice of that election to Indemnitee; and
(3) if clause (2) above entitles the Company Company, the Partnership or that Related Enterprise to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Company and the Partnership will not be liable to Indemnitee hereunder for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs with respect to such Claims after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s 's own legal counsel in that Proceeding, but, after the assumption of the defense thereof as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1A) the Company or the Partnership has authorized Indemnitee in writing to retain that counsel;
(2B) the Company or the Partnership shall not within a reasonable period of time actually have assumed the defense and employed counsel satisfactory to Indemnitee to assume the defense of those Claims; or
(3C) Indemnitee shall have (Ai) reasonably concluded either that (a) a conflict of interest may exist between Indemnitee Indemnitee, on the one hand, and the Company Company, the Partnership or a Related Enterprise, on the other hand, as to the defense of one or more of those Claims or (b) Indemnitee may have defenses to one or more of those Claims in addition to or different than the defenses available to the Company and the Partnership and (Bii) communicated that conclusion to the Company and the Partnership in writing, in which cases the Company and the Partnership will continue to be liable to Indemnitee hereunder for fees and expenses of legal counsel for Indemnitee.
(c) The Company and the Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s 's or the Partnership's prior written consent. The Company and the Partnership will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s 's prior written consent. Neither the Company Company, the Partnership nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.
Appears in 2 contracts
Samples: Indemnification Agreement (Encore Energy Partners LP), Indemnification Agreement (Encore Energy Partners LP)
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; PROVIDED, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do soHOWEVER, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that the failure or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has resulted in actual prejudice to a material adverse effect on the Company's ability to promptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticeas otherwise provided below. Indemnitee will shall have the right to employ Indemnitee’s own legal separate counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear such Proceeding but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period employment of time actually have employed separate counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without has been authorized by the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.;
Appears in 2 contracts
Samples: Indemnification Agreement (Mgi2 Inc), Indemnification Agreement (Pentacon Inc)
Notification and Defense of Claims. (a) If Indemnitee receives notice, otherwise than from the Company, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly shall notify the Company in writing as soon as practicable of any Claim arising out of, relating to, or resulting from an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon information then available to Indemnitee) of the nature andof, to Indemnitee’s knowledgeand the facts underlying, status and amount of that Proceedingmonetary damages sought in connection with, such Claim. If this Section 4(a) requires The failure by Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will timely notify the Company hereunder shall not relieve the Company fromfrom any liability hereunder, or otherwise affectexcept to the extent of any final, the obligations the Partnership may have non-appealable, award in respect of a Claim for which Indemnitee’s failure to indemnify Indemnitee under this Agreement, unless provide the Company can establish that with such timely notice deprived the failure has resulted Company of a reasonable opportunity to participate at its expense in actual prejudice to the Companydefense of such Claim.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate at its own expense in that Proceeding;
(2) the Company or that Related Enterprisedefense of any Claim arising out of, relating to, or either of themresulting from an Indemnifiable Event, will be entitled or to assume the defense of all Claimsthereof, other than (A) with counsel chosen by the Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
provided that, if Xxxxxxxxxx believes, after consultation with counsel selected by Xxxxxxxxxx, that in the event that (3a) if clause the use of the counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (2b) above entitles the named parties in any such Claim (including any impleaded parties) include the Company or any Subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee concludes, after consultation with counsel selected by Indemnitee, that Related Enterprise there may be one or more legal defenses available to assume Indemnitee that are different from or in addition to those available to the defense Company or any Subsidiary of the Company, or (c) representation of Indemnitee by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel reasonably satisfactory to the Company (but not more than one law firm, plus, if applicable, one local counsel in any given jurisdiction in respect of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), particular Claim) at the Company’s expense. The Company will shall not be liable to Indemnitee hereunder under this Agreement for any fees or expenses Indemnifiable Amounts comprised of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Indemnitee which Indemnitee effects effected without the Company’s prior written consent. The Company will not settle shall not, without the prior written consent of Indemnitee, effect any settlement of any Claim against arising out of, relating to, or resulting from an Indemnifiable Event to which Indemnitee in any manner is or could have been a party unless such settlement involves solely the payment of money (payment of which Indemnitee has no liability) and includes a complete and unconditional release of Indemnitee from all liability for all Claims arising out of, relating to, or resulting from, or based on the same underlying facts, events and circumstances that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consentare the subject matter of such Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition, or delay or its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide for such settlement the other party proposes to effectcomplete and unconditional release of Indemnitee.
Appears in 1 contract
Notification and Defense of Claims. Promptly after receipt by the Officer/Director of notice of any claim or the commencement of any action, suit or proceeding, the Officer/Director will notify the Company of the commencement thereof. The failure to so notify the Company will not relieve it from any obligation which it may have to the Officer/Director under this Agreement or otherwise except to the extent such failure has materially and irreparably injured the ability of the Company to defend successfully such action or to minimize the economic exposure resulting therefrom. With respect to each such action, suit or proceeding as to which the Officer/Director gives proper notice to the Company hereunder, the following provisions shall be applicable.
(a) If Indemnitee receives notice, otherwise than from The Company shall be entitled to participate in the Company, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Company from, or otherwise affect, the obligations the Partnership may have to indemnify Indemnitee under this Agreement, unless the Company can establish that the failure has resulted in actual prejudice to the Companydefense thereof at its own expense.
(b) Except as otherwise provided in this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
subsection (1b) the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding;
(2) the Company or that Related Enterprise, or either of them, will be entitled to assume the defense of all Claims, other than (A) thereof with counsel reasonably satisfactory to the Officer/Director. The Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written give notice of that its election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to assume the defense of any such action within thirty (30) days after the commencement of those Claims and the action or the date it delivers to Indemnitee receives notice of that assumption under clause (2)thereof, whichever is later. Thereafter, the Company will not be liable to Indemnitee hereunder the Officer/Director under this Agreement or otherwise for any fees legal or other expenses subsequently incurred by the Officer/Director in connection with the defense thereof other than reasonable costs of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticeinvestigation, or as otherwise provided in this subsection (b). Indemnitee will The Officer/Director shall have the right to employ Indemnitee’s own legal its counsel in that Proceedingsuch action, butsuit or proceeding, as clause (3) of the preceding sentence provides, will bear but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the sole expense of the Officer/Director unless (1A) the employment of counsel by the Director has been expressly authorized at such time by the Company, (B) the Officer/Director shall have reasonably concluded that there may be a disabling conflict of interest between the Company has authorized Indemnitee and the Officer/Director in writing to retain that counsel;
the conduct of the defense of such action, or (2C) the Company shall not within a reasonable period of time actually in fact have employed counsel to assume the defense of those Claims; or
(3) Indemnitee such action, and in each of such cases, the fees and expenses of counsel retained by the Officer/Director shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and be paid by the Company. The Company as shall not be entitled to assume the defense of one any action, suit or more proceeding brought by or derivatively on behalf of those Claims and the Company, or as to which the Officer/Director shall have concluded as provided in clause (B) communicated that conclusion to the Company in writingabove.
(c) The Partnership will Company shall not be obligated hereunder to, or liable for indemnification to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of the Officer/Director under this Agreement for any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Indemnitee action or claim which Indemnitee effects settlement is effected without the Company’s prior written consentconsent of the Company. The Company will shall not settle any Claim against Indemnitee action or claim in any manner that which would impose any penalty or limitation on Indemnitee upon the conduct of the Officer/Director without Indemnitee’s prior the written consentconsent of the Officer/Director. Neither the Company nor Indemnitee the Officer/Director will unreasonably delay withhold his or withhold its consent to any such settlement the other party proposes to effectproposed settlement.
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Notification and Defense of Claims. (a) If Indemnitee receives notice, otherwise than from the CompanyCompany or the Partnership, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company and the Partnership in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Company or the Partnership from, or otherwise affect, the obligations the Company or the Partnership may have to indemnify Indemnitee under this Agreement, unless the Company and the Partnership can establish that the failure has resulted in actual prejudice to the CompanyCompany and the Partnership.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) the Company and Company, the Partnership any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding;
(2) the Company Company, the Partnership or that Related Enterprise, or either of them, will be entitled to assume the defense of all Claims, other than (Ai) Company Claims, if any, and (Bii) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion described in clause (3C) of the next sentence describessentence, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Company and the Partnership will not be liable to Indemnitee hereunder for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1A) the Company or the Partnership has authorized Indemnitee in writing to retain that counsel;
(2B) the Company or the Partnership shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3C) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee Indemnitee, on the one hand, and the Company or the Partnership, on the other hand, as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company and the Partnership in writing.
(c) The Company and the Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s or the Partnership’s prior written consent. The Company and the Partnership will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company Company, the Partnership nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.
Appears in 1 contract
Samples: Indemnification Agreement (Encore Energy Partners LP)
Notification and Defense of Claims. (a) If Promptly after receipt by the Indemnitee receives noticeof notice of the commencement of any Action, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim for indemnification in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceedingcommencement thereof. If this Section 4(a) requires The failure by Indemnitee to give such a notice, but Indemnitee fails to do so, that failure so notify the Company will not relieve the Company from, or otherwise affect, from any liability to the obligations the Partnership may have to indemnify Indemnitee under this AgreementAgreement unless, unless and only to the Company can establish that extent that, such failure actually and material prejudices the failure has resulted in actual prejudice to interests of the Company.
(b) Except With respect to any Action to which the Indemnitee is or was a party by reason of the Indemnitee’s Corporate Status and as this Section 4(b) otherwise provides belowto which the Indemnitee so notifies the Company, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate in the defense at its own sole expense in that Proceeding;
(2) the Company or that Related Enterprise, or either of them, will be entitled to may assume the defense thereof, except for any such Action asserted by or in the right of all Claims, other than the Company (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach be entitled to exclusively control the conclusion clause (3) defense). The Company’s participation in the defense of any Action of which the next sentence describesCompany has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, in that Proceeding against Indemnitee by prompt written notice including Indemnitee’s right to control the defense of that election to Indemnitee; andsuch Action.
(3c) if clause (2) above entitles After notice from the Company or that Related Enterprise to the Indemnitee of its election to assume the defense of any Action to which the Indemnitee is or was a party by reason of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)the Indemnitee’s Corporate Status, the Company will not be liable to the Indemnitee hereunder under this Agreement for any fees legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than such expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of legal counsel for such Action or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnitee incurs after Indemnitee receives that notice. Indemnitee will shall have the right to employ Indemnitee’s own legal separate counsel in that Proceedingsuch Action, but, as clause (3) of the preceding sentence provides, will bear but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the sole expense of the Indemnitee unless (1i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) counsel designated by the Company has authorized Indemnitee in writing to retain that counsel;
conduct such defense shall not be reasonably satisfactory to the Indemnitee, or (2iii) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
such action, in each of which cases the fees and expenses of separate counsel (3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of but not more than one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder tolaw firm plus, or to cause another Partnership Entity toif applicable, indemnify Indemnitee against or hold Indemnitee harmless from and local counsel in respect of any particular Action) shall be at the sole expense of the Company. For the purposes of clause (ii) above, the Indemnitee shall be entitled to determine that counsel designated by the Company is not reasonably satisfactory if, among other reasons, the Indemnitee shall have been advised by qualified counsel that the use of counsel chosen by the Company to represent Indemnitee would present an actual or potential conflict that is likely to materially and adversely affect the Indemnitee’s interest or would not be permissible under applicable canons of legal ethics. In all events Indemnitee shall not unreasonably interfere with the conduct of the defense by the Company of any Action to which the Indemnitee is or was a party by reason of the Indemnitee’s Corporate Status that the Company shall have assumed and of which the Company shall be using its reasonable best efforts to provide an effective defense.
(d) The Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Action to which the Indemnitee which Indemnitee effects is or was a party by reason of the Indemnitee’s Corporate Status effected without the Company’s prior written consent. The Company will not may settle any Claim against Action to which the Indemnitee in any manner that would impose any penalty is or limitation on Indemnitee without was a party by reason of the Indemnitee’s prior written consentCorporate Status without the consent of the Indemnitee only if (i) such settlement solely involves the payment of money and (ii) includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Action. Neither the Company nor the Indemnitee will unreasonably delay or withhold consent to any such proposed settlement; provided, that Indemnitee may withhold consent to any settlement the other party proposes to effectthat does not provide a complete and unconditional release of Indemnitee.
Appears in 1 contract
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; provided, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do sohowever, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that the failure or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has resulted in actual prejudice to a material adverse effect on the Company's ability to promptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticeas otherwise provided below. Indemnitee will shall have the right to employ Indemnitee’s own legal separate counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear such Proceeding but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (1A) the employment of separate counsel by Indemnitee has been authorized by the Company; (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company has authorized and Indemnitee in writing to retain that counsel;
the conduct of the defense of such Proceeding; or (2C) the Company shall not within a reasonable period of time actually in fact have employed counsel to assume the defense of those Claims; or
(3) such Proceeding, in each of which cases the reasonable fees and expenses of Indemnitee's counsel shall be borne by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and made the Company as to the defense of one or more of those Claims and conclusion provided for in (B) communicated that conclusion to above. Nothing in this subparagraph (ii) shall affect the obligation of the Company to indemnify Indemnitee against Expenses and Liabilities paid in writingsettlement for which it is otherwise obligated hereunder.
(ciii) The Partnership will Company shall not be obligated hereunder to, or liable to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of under this Agreement for any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Indemnitee which Indemnitee effects Proceedings or claims effected without the Company’s its prior written consent. The Company will shall not settle any Claim against Indemnitee Proceeding or claim in any manner that which would impose any penalty or limitation on Indemnitee without Indemnitee’s 's prior written consent. Neither the Company nor Indemnitee will unreasonably withhold or delay or withhold its consent to any such settlement the other party proposes to effectproposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (Lexicon Genetics Inc/Tx)
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; PROVIDED, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do soHOWEVER, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that the failure or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has resulted in actual prejudice to a material adverse effect on the Company's ability to promptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Expenses subsequently incurred by Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume connection with the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict such Proceeding other than reasonable costs of interest may exist between Indemnitee and the Company investigation or as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writingotherwise provided below.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.
Appears in 1 contract
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; provided, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do sohowever, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has a material adverse effect on the failure has resulted in actual prejudice Company s ability to the Companypromptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticeas otherwise provided below. Indemnitee will shall have the right to employ Indemnitee’s own legal separate counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear such Proceeding but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (1) the employment of separate counsel by Indemnitee has been authorized by the Company; (2) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company has authorized and Indemnitee in writing to retain that counsel;
the conduct of the defense of such Proceeding; or (23) the Company shall not within a reasonable period of time actually in fact have employed counsel to assume the defense of those Claims; or
(3) such Proceeding, in each of which cases the reasonable fees and expenses of Indemnitee s counsel shall be borne by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the conclusion provided for in (A2) reasonably concluded that a conflict above. Nothing in this subparagraph (ii) shall affect the obligation of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims indemnify Indemnitee against Expenses and (B) communicated that conclusion to the Company Liabilities paid in writingsettlement for which it is otherwise obligated hereunder.
(ciii) The Partnership will Company shall not be obligated hereunder to, or liable to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of under this Agreement for any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Indemnitee which Indemnitee effects Proceedings or claims effected without the Company’s its prior written consent. The Company will shall not settle any Claim against Indemnitee Proceeding or claim in any manner that which would impose any penalty or limitation on Indemnitee without Indemnitee’s Indemnitee s prior written consent. Neither the Company nor Indemnitee will unreasonably withhold or delay or withhold its consent to any such settlement the other party proposes to effectproposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (Integrated Electrical Services Inc)
Notification and Defense of Claims. (a) If Indemnitee receives notice, otherwise than from the Company, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly shall notify the Company in writing as soon as practicable of any Claim that could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon information then available to Indemnitee) of the nature andof, to Indemnitee’s knowledgeand the facts underlying, status of that Proceedingsuch Claim. If this Section 4(a) requires The failure by Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will timely notify the Company hereunder shall not relieve the Company from, or otherwise affect, from any liability hereunder except to the obligations the Partnership may have to indemnify Indemnitee under this Agreement, unless the Company can establish extent that the failure has resulted Company’s ability to participate in actual prejudice to the Companydefense of such claim was materially and adversely affected by such failure.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate at its own expense in that Proceeding;
(2) the Company defense of any Claim relating to an Indemnifiable Event or that Related Enterprise, or either of them, will be entitled to assume the defense of all Claimsthereof, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall with counsel reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
provided that, if Xxxxxxxxxx believes, after consultation with counsel selected by Xxxxxxxxxx, that (3a) if clause the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (2b) above entitles the named parties in any such Claim (including any impleaded parties) include the Company or any subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee concludes, after consultation with counsel selected by Indemnitee, that Related Enterprise there may be one or more legal defenses available to assume him or her that are different from or in addition to those available to the defense Company or any subsidiary of the Company, or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), particular Claim) at the Company’s expense. The Company will shall not be liable to Indemnitee hereunder under this Agreement for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Indemnitee which Indemnitee effects relating to an Indemnifiable Event effected without the Company’s prior written consent. The Company will not settle shall not, without the prior written consent of Indemnitee, effect any settlement of any Claim against relating to an Indemnifiable Event to which Indemnitee in any manner is or could have been a party unless such settlement involves solely the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consentare the subject matter of such Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition, or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any such settlement the other party proposes to effectthat does not provide a complete and unconditional release of Indemnitee.
Appears in 1 contract
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; provided, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do sohowever, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has a material adverse effect on the failure has resulted in actual prejudice Company s ability to the Companypromptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticeas otherwise provided below. Indemnitee will shall have the right to employ Indemnitee’s own legal separate counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear such Proceeding but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period employment of time actually have employed separate counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without has been authorized by the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.;
Appears in 1 contract
Samples: Indemnification Agreement (Integrated Electrical Services Inc)
Notification and Defense of Claims. Promptly after receipt by the Indemnitee of notice of any claim or the commencement of any action, suit or proceeding, the Indemnitee will notify the Company of the commencement thereof. The failure to so notify the Company will not relieve it from any obligation which it may have to the Indemnitee under this Agreement or otherwise except to the extent such failure has materially impaired the ability of the Company to defend successfully such action or to minimize the economic exposure resulting therefrom. With respect to each such action, suit or proceeding as to which the Indemnitee gives proper notice to the Company hereunder, the following provisions shall be applicable.
(a) If Indemnitee receives notice, otherwise than from The Company shall be entitled to participate in the Company, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure will not relieve the Company from, or otherwise affect, the obligations the Partnership may have to indemnify Indemnitee under this Agreement, unless the Company can establish that the failure has resulted in actual prejudice to the Companydefense thereof at its own expense.
(b) Except as otherwise provided in this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
subsection (1b) the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding;
(2) the Company or that Related Enterprise, or either of them, will be entitled to assume the defense of all Claims, other than (A) thereof with counsel reasonably satisfactory to the Indemnitee. The Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written give notice of that its election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to assume the defense of any such action within thirty (30) days after the commencement of those Claims and the action or the date it delivers to Indemnitee receives notice of that assumption under clause (2)thereof, whichever is later. Thereafter, the Company will not be liable to the Indemnitee hereunder under this Agreement or otherwise for any fees legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of legal counsel for investigation, or as otherwise provided in this subsection (b). The Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will shall have the right to employ Indemnitee’s own legal personal counsel in that Proceedingsuch action, butsuit or proceeding, as clause (3) of the preceding sentence provides, will bear but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the sole expense of the Indemnitee unless (1A) the employment of counsel by the Director has been expressly authorized at such time by the Company, (B) the Indemnitee shall have reasonably concluded that there may be a disabling conflict of interest between the Company has authorized and the Indemnitee in writing to retain that counsel;
the conduct of the defense of such action, or (2C) the Company shall not within a reasonable period of time actually in fact have employed counsel to assume the defense of those Claims; or
(3) such action, and in each of such cases, the fees and expenses of counsel retained by the Indemnitee shall be paid by the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or derivatively on behalf of the Company, or as to which the Indemnitee shall have concluded as provided in clause (AB) reasonably concluded above that there may be a disabling conflict of interest may exist between Indemnitee the Company and the Company as to Indemnitee in the conduct of the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writingsuch action.
(c) The Partnership will Company shall not be obligated hereunder to, or liable for indemnification to cause another Partnership Entity to, indemnify the Indemnitee against or hold Indemnitee harmless from and in respect of under this Agreement for any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Indemnitee action or claim, which Indemnitee effects settlement is effected without the Company’s prior written consentconsent of the Company. The Company will shall not settle any Claim against Indemnitee action or claim in any manner that which would impose any penalty or limitation on upon the conduct of the Indemnitee without the written consent of the Indemnitee’s prior written consent. Neither the Company nor the Indemnitee will unreasonably delay withhold his or withhold its consent to any such settlement the other party proposes to effectproposed settlement.
Appears in 1 contract
Samples: Indemnification Agreement (Blonder Tongue Laboratories Inc)
Notification and Defense of Claims. (a) If Promptly after receipt by the Indemnitee receives noticeof notice of the commencement of any Action, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim for indemnification in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a noticecommencement thereof, but Indemnitee fails the omission to do so, that failure so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership from any liability which it may have to indemnify the Indemnitee otherwise than under this Agreement, unless . With respect to any such Action as to which the Indemnitee so notifies the Company:
(i) the Company can establish will be entitled to participate therein at its sole expense; and
(ii) subject to SECTION 7 hereof, and if the Indemnitee shall have provided a written affirmation that: (i) he or she believes in good faith that his or her conduct conformed with the failure has resulted standard set forth in actual prejudice SECTION 1(A) hereof and did not constitute behavior of the kind described in SECTION 2(A) hereof and (ii) that he or she is entitled to indemnification hereunder, the CompanyCompany may assume the defense thereof.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) After notice from the Company and any Related Enterprise that also may be obligated to indemnify the Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding;
(2) the Company or that Related Enterprise, or either of them, will be entitled election to assume the defense of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)such defense, the Company will not be liable to the Indemnitee hereunder under this Agreement for any fees legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than reasonable costs of legal counsel for investigation or as otherwise provided below. The Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will shall have the right to employ Indemnitee’s own legal separate counsel in that Proceedingsuch Action, but, as clause (3) of the preceding sentence provides, will bear but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the sole expense of the Indemnitee unless (1i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) counsel designated by the Company has authorized Indemnitee in writing to retain that counsel;
conduct such defense shall not be reasonably satisfactory to the Indemnitee, or (2iii) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
such action, in each of which cases the fees and expenses of such counsel shall be at the sole expense of the Company. For the purposes of clause (3ii) above, the Indemnitee shall be entitled to determine that counsel designated by the Company is not reasonably satisfactory if, among other reasons, the Indemnitee shall have (A) reasonably concluded that a conflict been advised by qualified counsel that, because of actual or potential conflicts of interest may exist in the matter between Indemnitee and the Indemnitee, other officers or directors similarly indemnified by the Company as to and/or the defense Company, representation of one or more of those Claims and (B) communicated that conclusion to the Indemnitee by counsel designated by the Company in writingis likely to materially and adversely affect the Indemnitee's interest or would not be permissible under applicable canons of legal ethics.
(c) The Partnership will Company shall not be obligated hereunder to, or liable to cause another Partnership Entity to, indemnify the Indemnitee against or hold Indemnitee harmless from and in respect of under this Agreement for any amounts paid, or agreed to be paid, by Indemnitee paid in settlement of any Claim against Indemnitee which Indemnitee effects Action not defended by the Company effected without the Company’s prior 's written consent. The Company will may settle any Action for which it has assumed the defense without the consent of the Indemnitee if the Company accepts full responsibility and the settlement releases the Indemnitee from potential liability. The Company shall not settle any Claim against Indemnitee Action in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee’s prior 's written consent. Neither the Company nor the Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effectproposed settlement.
Appears in 1 contract
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; provided, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do sohowever, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that the failure or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has resulted in actual prejudice to a material adverse effect on the Company's ability to promptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticeas otherwise provided below. Indemnitee will shall have the right to employ Indemnitee’s own legal separate counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear such Proceeding but the fees and expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period employment of time actually have employed separate counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without has been authorized by the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.;
Appears in 1 contract
Samples: Indemnification Agreement (Sterling Chemicals Holdings Inc /Tx/)
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; provided, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do sohowever, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that the failure or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has resulted in actual prejudice to a material adverse effect on the Company's ability to promptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticeas otherwise provided below. Indemnitee will shall have the right to employ Indemnitee’s own legal separate counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.such
Appears in 1 contract
Samples: Indemnification Agreement (Integrated Electrical Services Inc)
Notification and Defense of Claims. (a) If Promptly after receipt by the Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect notify the Secretary of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature and, commencement thereof; but the omission to Indemnitee’s knowledge, status so notify the Secretary of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership from any liability that it may have to indemnify the Indemnitee otherwise than under this Agreement or otherwise, except to the extent that the Company may suffer material prejudice by reason of such failure. Notwithstanding any other provision of this Agreement, unless with respect to any such Proceeding as to which the Indemnitee gives notice to the Company can establish that of the failure has resulted in actual prejudice commencement thereof:
(a) The Company will be entitled to the Companyparticipate therein at its own expense.
(b) Except as otherwise provided in this Section 4(b) otherwise provides below13(b), in to the case of extent that it may wish, the Company, jointly with any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding;
(2) the Company or that Related Enterpriseother indemnifying party similarly notified, or either of them, will shall be entitled to assume the defense of all Claims, other than (A) thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company Claims, if any, and (B) other Claims, if any, as to which the Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that Company's election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to so assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will shall not be liable to the Indemnitee hereunder under this Agreement for any fees legal or expenses other Expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of legal counsel for investigation or as otherwise provided below. The Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will shall have the right to employ the Indemnitee’s 's own legal counsel in that such Proceeding, but, as clause (3) of the preceding sentence provides, will bear but the fees and expenses Expenses of that such counsel unless:
incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (1i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there is a conflict of interest between the Company has authorized and the Indemnitee in writing the conduct of the defense of such action and such determination by the Indemnitee shall be supported by an opinion of counsel provided to retain that counsel;
the Company, which opinion shall be reasonably acceptable to the Company, or (2iii) the Company shall not within a reasonable period of time actually in fact have employed counsel to assume the defense of those Claims; or
(3) the action within a reasonable time after the Company has provided notice to the Indemnitee of the Company’s election to assume the defense of such action, in each of which cases the Expenses of such counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which the Indemnitee shall have reached the conclusion provided for in clause (Aii) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writingabove.
(c) The Partnership will Company shall not be obligated hereunder toliable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any action, suit or proceeding effected without its written consent, which consent shall not be unreasonably withheld. The Company shall not be required to cause another Partnership Entity toobtain the consent of the Indemnitee to settle any action, indemnify suit or proceeding which the Company has undertaken to defend if the Company assumes full and sole responsibility for such settlement and such settlement grants the Indemnitee against or hold Indemnitee harmless from a complete and unqualified release in respect of any amounts paidpotential liability and does not impose any future restriction or limitation on Indemnitee.
(d) If, or agreed at the time of the receipt of a notice of a claim pursuant to be paidthis Section 13, by Indemnitee the Company has director and officer liability insurance in settlement effect, the Company shall give prompt notice of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consentcommencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company will not settle any Claim against Indemnitee shall thereafter take all reasonably necessary or desirable action to cause such insurers to comply with such policies including, without limitation, to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither accordance with the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement terms of the other party proposes to effectpolicies.
Appears in 1 contract
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; PROVIDED, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do soHOWEVER, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that the failure or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has resulted in actual prejudice to a material adverse effect on the Company's ability to promptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.-4-
Appears in 1 contract
Notification and Defense of Claims. (a) If Indemnitee receives noticePromptly after receipt of any notice concerning the commencement of an action, otherwise than from suit or proceeding, if a claim in respect thereof is to be made against the Company, that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly the Indemnified Party shall notify the Company in writing of the nature andthereof, to Indemnitee’s knowledge, status of provided that Proceeding. If this Section 4(a) requires Indemnitee failure to give such a notice, but Indemnitee fails to do so, that failure will prompt notice shall not relieve the Company from, or otherwise affect, the obligations the Partnership from any liability it may have to indemnify Indemnitee under this Agreementthe Indemnified Party hereunder, unless except to the extent that the Company can establish that the failure has resulted is prejudiced in actual prejudice to the Company.
(b) Except as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of which Indemnitee seeks indemnification hereunder:
(1) the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding;
(2) the Company or that Related Enterprise, or either of them, will be entitled to assume the defense of all Claims, other than (A) such claim as a result of such failure. The Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to may assume the defense of any such claim with counsel reasonably satisfactory to the Indemnified Party, and shall not be obligated to furnish separate counsel to the Indemnified Party in any action in which the Company and the Indemnified Party are joined unless the Indemnified Party reasonably concludes that there may be a conflict of those Claims interest between him and it delivers the Company. After notice from the Company to Indemnitee notice the Indemnified Party of that assumption under clause (2)its election to so assume the defense of such claim, the Company will shall not be liable to Indemnitee hereunder the Indemnified Party for any fees legal or other expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that noticesubsequently incurred by him, except in cases where separate representation is required. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in No settlement of any Claim against Indemnitee which Indemnitee effects such claim shall be made without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither mutual approval of the Company nor Indemnitee will and the Indemnified Party, but neither of them shall unreasonably condition, delay or withhold their consent to any such settlement which the other party proposes to effecthas proposed.
Appears in 1 contract
Notification and Defense of Claims. (a) If Indemnitee receives noticePromptly after receipt of any notice concerning the commencement of an Indemnity Claim, otherwise than from if a claim in respect thereof is to be made against the Company, the Indemnitee shall give prompt notice thereof to the Manager, provided that Indemnitee is or will be made, or is threatened to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee failure to give such a notice, but Indemnitee fails to do so, that failure will prompt notice shall not relieve the Company from, or otherwise affect, the obligations the Partnership from any liability it may have to indemnify the Indemnitee under this Agreementhereunder, unless except to the extent that the Company can establish that is prejudiced in its defense of such Indemnity Claim as a result of such failure. The Company may assume the failure has resulted in actual prejudice defense of any Indemnity Claim with counsel reasonably satisfactory to the Company.
(b) Except as this Section 4(b) otherwise provides below, Indemnitee and shall not be obligated to furnish separate counsel to the Indemnitee in the case of any Proceeding action in respect of which Indemnitee seeks indemnification hereunder:
(1) the Company and any Related Enterprise the Indemnitee are joined unless the Indemnitee reasonably concludes that also there may be obligated to indemnify a conflict of interest between the Indemnitee in respect of that Proceeding will be entitled to participate at its own expense in that Proceeding;
(2) and the Company. After notice from the Company or that Related Enterprise, or either to the Indemnitee of them, will be entitled its election to assume the defense of all Claimsan Indemnity Claim, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2), the Company will not be liable to Indemnitee hereunder for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company be liable for any Indemnity Expenses subsequently incurred, except in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in cases where separate representation is required. No settlement of any Indemnity Claim against Indemnitee which Indemnitee effects shall be made without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither mutual approval of the Company nor Indemnitee will and the Indemnitee, but neither of them shall unreasonably condition, delay or withhold their consent to any such settlement which the other party proposes to effecthas proposed.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Medical Properties Trust, LLC)
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from the CompanyIndemnitee will, that Indemnitee if a claim in respect thereof is or will be made, or is threatened to be mademade against the Company under this Agreement, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly notify the Company in writing of the nature andcommencement of such Proceeding; provided, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do sohowever, that failure the omission to so notify the Company will not relieve the Company from, or otherwise affect, the obligations the Partnership (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless and then only to the extent that, such omission results in insufficient time being available to permit the Company can establish that the failure or its counsel to effectively defend against or make timely response to any loss, claim, damage, liability or expense resulting from such Proceeding or otherwise has resulted in actual prejudice to a material adverse effect on the Company's ability to promptly deal with such loss, claim, damage, liability or expense or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Company of the commencement thereof:
(1i) the The Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the extent it may elect to do so, the Company or that Related Enterprise, or either of them, (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as to which Indemnitee shall its own selection reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that election satisfactory to Indemnitee; and
(3) if clause (2) above entitles . After notice from the Company or that Related Enterprise to Indemnitee of its election so to assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company will not be liable to Indemnitee hereunder under this Agreement for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Expenses subsequently incurred by Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume connection with the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict of interest may exist between Indemnitee and the Company as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writing.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.such
Appears in 1 contract
Samples: Indemnification Agreement (Chemical Logistics Corp)
Notification and Defense of Claims. (a) If Promptly after the receipt by Indemnitee receives noticeof notice of the commencement of any Proceeding, otherwise than from Indemnitee will, if indemnification in respect thereof is to be requested the CompanyCorporation under this Agreement, notify the Corporation of the commencement of such Proceeding; provided, however, that Indemnitee is or will be made, or is threatened the omission to be made, a party to any Proceeding in respect of which Indemnitee intends to seek indemnification hereunder, Indemnitee must promptly so notify the Company in writing of the nature and, to Indemnitee’s knowledge, status of that Proceeding. If this Section 4(a) requires Indemnitee to give such a notice, but Indemnitee fails to do so, that failure Corporation will not relieve the Company from, or otherwise affect, the obligations the Partnership Corporation (i) from any liability which it may have to indemnify Indemnitee under this AgreementAgreement unless, unless the Company can establish that the failure has resulted in actual prejudice and then only to the Companyextent that, such omission results in insufficient time being available to permit the Corporation or its counsel to effectively defend against or make timely response to any Claim Expense, loss, damage, or liability resulting from such Proceeding or otherwise has a material adverse effect on the Corporation's ability to promptly deal with such Claim Expense, loss, claim, damage liability or (ii) from any liability which it may have to Indemnitee otherwise than under this Agreement.
(b) Except The following provisions shall apply with respect to any such Proceeding as this Section 4(b) otherwise provides below, in the case of any Proceeding in respect of to which Indemnitee seeks indemnification hereundernotifies the Corporation of the commencement thereof:
(1i) the Company and any Related Enterprise that also may be obligated to indemnify Indemnitee in respect of that Proceeding will The Corporation shall be entitled to participate therein at its own expense in that Proceeding;expense.
(2ii) Except as otherwise provided below, to the Company or that Related Enterpriseextent it may elect to do so, or either of them, the Corporation (jointly with any other indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel of all Claims, other than (A) Company Claims, if any, and (B) other Claims, if any, as its own selection reasonably satisfactory to which Indemnitee. After notice from the Corporation to Indemnitee shall reasonably reach the conclusion clause (3) of the next sentence describes, in that Proceeding against Indemnitee by prompt written notice of that its election to Indemnitee; and
(3) if clause (2) above entitles the Company or that Related Enterprise to so assume the defense of any of those Claims and it delivers to Indemnitee notice of that assumption under clause (2)thereof, the Company Corporation will not be liable to Indemnitee hereunder under this Agreement for any fees or expenses of legal counsel for Indemnitee which Indemnitee incurs after Indemnitee receives that notice. Indemnitee will have the right to employ Indemnitee’s own legal counsel in that Proceeding, but, as clause (3) of the preceding sentence provides, will bear the fees and expenses of that counsel unless:
(1) the Company has authorized Expenses subsequently incurred by Indemnitee in writing to retain that counsel;
(2) the Company shall not within a reasonable period of time actually have employed counsel to assume connection with the defense of those Claims; or
(3) Indemnitee shall have (A) reasonably concluded that a conflict such Proceeding other than reasonable costs of interest may exist between Indemnitee and the Company investigation or as to the defense of one or more of those Claims and (B) communicated that conclusion to the Company in writingotherwise provided below.
(c) The Partnership will not be obligated hereunder to, or to cause another Partnership Entity to, indemnify Indemnitee against or hold Indemnitee harmless from and in respect of any amounts paid, or agreed to be paid, by Indemnitee in settlement of any Claim against Indemnitee which Indemnitee effects without the Company’s prior written consent. The Company will not settle any Claim against Indemnitee in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably delay or withhold consent to any such settlement the other party proposes to effect.
Appears in 1 contract
Samples: Indemnification Agreement (Miller Mechanical Contractors Inc)