Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) to the Seller after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder.
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Procedure for Claims. If a claim for indemnification pursuant 10.4.1 Notice and Opportunity to Section 8.2 (a “Claim”) is to be made Defend Against Third Party Claims.
10.4.1.1 Promptly after receipt from any third party by a any Buyer Indemnified Party entitled to indemnification hereunder, the Buyer or Member Indemnified Party claiming such indemnification (the “Indemnified Party”) of a notice of any demand, claim or circumstance that, immediately or with the lapse of time, would give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation (an “Asserted Liability”) that may result in Losses for which indemnification may be sought hereunder, the Indemnified Party shall give written notice thereof (a the “Third Party Claim Notice”) to the Seller after party obligated to provide indemnification pursuant to this Agreement (the “Indemnifying Party”); provided, however, that a failure to give such notice shall not prejudice the Indemnified Party’s right to indemnification hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced thereby or forfeits substantive rights or defenses as a result of such failure. The Third Party Claim Notice shall describe the Asserted Liability in reasonable detail, and shall indicate the amount (estimated, if necessary) of the Losses has been or may be suffered by the Indemnified Party.
10.4.1.2 The Indemnifying Party may elect to compromise or defend, at its own expense and by its own counsel, who shall be reasonably satisfactory to the Indemnified Party, any Asserted Liability. If the Indemnifying Party elects to compromise or defend such Asserted Liability, it shall, within twenty (20) Business Days following its receipt of the Third Party Claim Notice notify in writing the Indemnified Party becomes aware of any fact, condition or event which may give rise its intent to Damages for which indemnification may be sought under Section 8.2.Subject to do so (the provisions of Section 8.2(g) above, the failure of any Indemnified “Indemnifying Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party ClaimNotice”), which Indemnifying Party Notice shall specify the Buyer counsel it will appoint to defend such claim and the Indemnified Party shall determine cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Asserted Liability. Within ninety (90) days of sending the Indemnifying Party Notice, should the Indemnifying Party wish to continue defending such Asserted Liability, the Indemnifying Party shall acknowledge in writing and conduct without qualification its obligation to indemnify the defenseIndemnified Party for all Losses with respect to such Asserted Liability. If the Indemnifying Party elects not to compromise or defend the Asserted Liability or fails to notify the Indemnified Party of its election as herein provided, the Indemnified Party may pay, compromise or defend such Asserted Liability. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any Asserted Liability without the consent of the other party; provided, however, that such consent to settlement of such Third or compromise shall not be unreasonably delayed or withheld. In any event, the Indemnified Party Claimand the Indemnifying Party may participate, and (a) all reasonable expenses relating to at their own expense, in the defense of such Third Asserted Liability. If the Indemnifying Party Claim (whether chooses to compromise or not incurred by defend any Asserted Liability, the Buyer) shall be borne and paid exclusively by Indemnified Party shall, at the expense of the Indemnifying Party; , make available to the Indemnifying Party any books, records or other documents within its control that are reasonably necessary or appropriate for such compromise or defense. If the Indemnifying Party elects not to compromise or defend the Asserted Liability or fails to notify in writing the Indemnified Party of its election as herein provided, the Indemnifying Party shall, at the expense of the Indemnifying Party, make available to the Indemnified Party any books, records or other documents within its control that are reasonably necessary or appropriate for such compromise or defense. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to elect to compromise or defend, and the Indemnified Party shall be entitled to compromise and defend, any Asserted Liability, at the expense of the Indemnifying Party, if (i) the claim for indemnification is with respect to a criminal proceeding, action, indictment, allegation or investigation, (ii) the Seller shall make available to Indemnified Party has been advised by external counsel that a reasonable likelihood exists of a material conflict of interest between the Buyer any documents Indemnifying Party and materials in their possession the Indemnified Party or control that may be necessary to the defense of such Third Party Claim; and (ciii) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine claim seeks an injunction or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by other equitable relief against the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunderParty or Buyer.
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Procedure for Claims. (a) If a claim for indemnification pursuant to Section 8.2 10.2 (a “Claim”) is to be made by a Buyer an Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice to the other applicable Party (a the “Claim NoticeIndemnifying Party”) to the Seller reasonably promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to 10.2 or receipt by the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely of notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim claim brought pursuant to Section 8.2 10.2 involving the assertion of a claim by a third party Third Party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”). The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that the Indemnifying Party actually suffers damage caused by such failure, and then only to the extent thereof. The Indemnifying Party shall have [***] days (or such lesser number of days set forth in the notice as may be required by court proceeding in the event of a litigated matter) after receipt of the notice to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third Party Claim. In the case of a Third Party Claim, subject to the limitations of Section 10.2, the Buyer Party conducting the defense (the “Defending Party”) shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating and, subject to the defense limitations of such Third Party Claim Section 10.2, (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (iii) the Seller other applicable Party (the “Non-Defending Party”) shall make available to the Buyer Defending Party any documents and materials in their its or its Affiliates’ possession or control that may be necessary to the defense of such Third Party Claim; Claim and (cii) the Buyer Defending Party shall keep the Seller other Parties reasonably informed of all material developments and events relating to such Third Party Claim. .
(b) The Seller shall be entitledNon-Defending Party, at its sole option and expense, to may participate in, but not to determine or conduct, in any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Except with the written consent of the Non-Defending Party shall (not to be liable for any settlement unreasonably withheld, delayed or conditioned), the Defending Party will not, in the defense of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim thatClaim, if adversely determined would give rise consent to the entry of any judgment or enter into any compromise or settlement (i) which does not include as an unconditional term thereof the giving to the Indemnified Party by the Third Party of a right release from all liability with respect to such suit, claim, action, or proceeding; (ii) unless there is no finding or admission of recovery for Damages hereunder, then (A) any amounts incurred violation of Law by the Indemnified Parties in defense of such claimParty (or any Affiliate thereof), regardless (B) any liability on the part of the outcome Indemnified Party (or any Affiliate thereof) not indemnified hereunder or (C) any violation of such claim, the rights of any Person and no effect on any other claims of a similar nature that may be made by the same Third Party against the Indemnified Party (or any Affiliate thereof); or (iii) which exceeds the applicable indemnification limitations as set forth herein. No settlement or compromise of any Third Party Claim shall be deemed “Damages” hereunderto determine the amount of Damages of the Indemnified Parties under this Article 10 unless the Non-Defending Party actually consents thereto.
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Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Losses (a “an "Indemnified Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”") shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which when may give rise to Damages Losses for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder6. In the case of a an Indemnified Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), (a) the Buyer Indemnifying Party shall determine be entitled, if it so elects, at its own cost, risk and conduct expense (i) to take control of the defense, compromise or settlement defense and investigation of such Third Third-Party Claim, and (aii) all reasonable expenses relating to pursue the defense thereof by appropriate actions or proceedings, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the defense of such Third Indemnified Party Claim to handle and defend the same, and (whether or not incurred by b) the Buyer) Indemnifying Party shall be borne and paid exclusively by entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party; (ii) Party elects to assume control of the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third lawsuit or other legal action in accordance with this Section 6.2, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim. If the Indemnifying Party fails to assume the defense of such Third-Party Claim or settlement negotiations in accordance with respect this Section within 30 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such Third effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party ClaimClaim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 6 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for Damages hereunder, then indemnify and hold harmless each Indemnified Party from and against any amounts and all Losses incurred by the Indemnified Parties in defense Party by reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
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Samples: Series a Preferred Stock Purchase Agreement (Azul Holdings Inc)
Procedure for Claims. (a) If a claim for indemnification pursuant to Section 8.2 10.2 (a “Claim”) is to be made by a Buyer an Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice to Buyer (a in the case of the Seller Indemnified Parties) or Sellers (in the case of the Buyer Indemnified Parties) (the “Claim NoticeIndemnifying Party”) to the Seller reasonably promptly after the Indemnified Party becomes aware of any fact, condition or event which that may give rise to Damages Losses for which indemnification may be sought under Section 8.2.Subject to 10.2, or receipt by the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely of notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 claim involving the assertion of a claim by a third party Third Party that may give rise to Losses for which indemnification may be sought under Section 10.2 (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”). The failure of any Indemnified Party to give timely notice hereunder shall not affect its rights to indemnification hereunder, except to the extent that the Indemnifying Party is actually prejudiced by such failure. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the notice as may be required by court Proceeding in the event of a litigated matter) after receipt of the notice to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third Party Claim. Notwithstanding the foregoing, if such Third Party Claim (i) seeks injunctive, equitable or other relief or remedies that are not money damages against the Indemnified Party, or (ii) involves criminal allegations against the Indemnified Party, then the Indemnified Party shall have the right to control the defense, compromise or settlement of such Third Party Claim with counsel of its choice. If the Indemnifying Party assumes the defense of such Third Party Claim, the Buyer shall determine Indemnifying Party must conduct the defense of the Third Party Claim actively and conduct diligently thereafter, failing which the Indemnified Party may assume such defense.
(b) If the Indemnifying Party assumes the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Indemnified Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer Indemnifying Party any documents and materials in their its or its Affiliates’ possession or control that may be necessary to the defense of such Third Party Claim; provided that (i) the Indemnified Party shall not be required to furnish any such documents or materials which would (in the reasonable judgment of such Indemnified Party upon advice of counsel) be reasonably likely to (A) constitute a waiver of the attorney-client or other privilege held by such Indemnified Party or any of its Affiliates, (B) violate any applicable Laws or (C) breach any Contract of such Indemnified Party or any of its Affiliates with any Third Party; provided that such Indemnified Party shall use reasonable best efforts to obtain any required Consents and take such other reasonable action (such as the entry into a joint defense agreement or other arrangement to avoid loss of attorney-client privilege) to permit such disclosure and (cii) the Buyer Indemnifying Party shall keep the Seller Indemnified Party reasonably informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitledIndemnified Party, at its sole option and expenseoption, to may participate in, but not to determine or conduct, in any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The fees and disbursements of counsel retained by such Indemnified Party shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party; or there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for any settlement the reasonable fees and expenses of counsel to such Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. Except with the written Consent of the other Party (not to be unreasonably withheld, conditioned or delayed), neither the Indemnifying Party nor the Indemnified Party shall, in the defense of a Third Party Claim, consent to the entry of any Third-judgment or enter into any compromise or settlement (1) which does not include as an unconditional term thereof the giving to the other Party and its Affiliates by the Third Party of a release from all Liability with respect to such Proceeding, (2) if such judgment, compromise or settlement involves a finding or admission of (x) any violation of Law by the other Party (or any Affiliate thereof) or (y) any Liability on the part of the Indemnified Party (or any Affiliate thereof) not indemnified hereunder, or (3) which involves injunctive, equitable or other relief or remedies that are not money damages against the other Party. With respect to Claims other than Third Party Claims, after the giving of any notice of a Claim effected pursuant to this Section 10.5, the amount of indemnification to which an Indemnified Party shall be entitled under this Article 10 shall be determined (x) by the written agreement between the Indemnified Party and the Indemnifying Party, (y) in accordance with this Section 8.4 Sections 11.6 and for 11.7 or (z) by any final judgment (subject other means to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by which the Indemnified Parties in defense of such claim, regardless of Party and the outcome of such claim, Indemnifying Party shall be deemed “Damages” hereunderagree.
Appears in 1 contract
Samples: Asset Purchase Agreement (Amneal Pharmaceuticals, Inc.)
Procedure for Claims. If An Indemnified Party wishing to assert a claim for indemnification pursuant under this Article VI, which does not constitute a third-party claim, shall deliver to Section 8.2 the Indemnifying Party a Claim Notice. Within thirty (30) days after delivery of a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunderClaim Notice, the Buyer Indemnified Indemnifying Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) deliver to the Seller after the Indemnified Party becomes aware a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Claimed Amount, by check or by wire transfer), (II) agree that the Indemnified Party is entitled to receive the Agreed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer), or (III) contest that the Indemnified Party is entitled to receive any factof the Claimed Amount. If the Indemnifying Party in such response contests the payment of all or part of the Claimed Amount, condition or event which may give rise the Indemnifying Party and the Indemnified Party shall use good faith efforts to Damages for which indemnification may be sought under Section 8.2.Subject resolve such dispute. If such dispute is not resolved within thirty (30) days following the delivery by the Indemnifying Party of such response, the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder11.12.
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Procedure for Claims. If For purposes hereof, a Party claiming a right to indemnification shall be referred to as the “Indemnified Party” and the Party against whom such indemnification claim is made shall be referred to as the “Indemnifying Party”; provided that, with respect to any notices, responses, consents or approvals (but for the avoidance of doubt, not indemnification) to be provided by or to (i) an Indemnifying Party in connection with a claim pursuant to Section 10.2(a) or Section 10.2(d), references in this Agreement to the Indemnifying Party shall mean the Representative and (ii) an Indemnified Party in connection with a claim pursuant to Section 10.2(c), references in this Agreement to the Indemnified Party shall mean the Representative. An Indemnified Party wishing to assert a claim for indemnification pursuant under Section 10.2 (other than a third-party claim covered by Section 10.3(b) below) shall deliver to Section 8.2 the Indemnifying Party a certificate (a an “ClaimOfficer’s Certificate”) is to be made signed by any officer of the Indemnified Party, if a Buyer Purchaser Indemnified Party, or by the Representative, if a Securityholder Indemnified Party, (A) stating that an Indemnified Party has paid, sustained or incurred, or reasonably anticipates that it will have to pay, sustain or incur Indemnified Losses (the aggregate amount of such Indemnified Losses being referred to as the “Claimed Amount”), (B) specifying in reasonable detail the facts pertinent to such claim(s), the individual items of Indemnified Losses included in the amount so stated, the method of computation thereof and the basis for indemnification to which such item is related and (C) demanding payment of the Claimed Amount. Within twenty (20) Business Days after delivery of such Officer’s Certificate, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (1) agree that the Indemnified Party is entitled to indemnification hereunderreceive all of the Claimed Amount, (2) agree that the Buyer Indemnified Party claiming such indemnification is entitled to receive part, but not all, of the Claimed Amount (the “Indemnified PartyAgreed Amount”) shall give written notice or (a “Claim Notice”3) to the Seller after contest that the Indemnified Party becomes aware is entitled to receive any of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunderClaimed Amount. In the case of (1) or (2) above where the Indemnified Party is a Claim brought pursuant Purchaser Indemnified Party, the Representative and the Indemnified Party shall deliver to Section 8.2 involving the assertion Escrow Agent, within three (3) Business Days following delivery of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwisethe response, a “Third Party Claim”), written notice executed by both such parties instructing the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating Escrow Agent to distribute to the defense Indemnified Party, from and to the extent of such Third Party Claim (whether the Indemnity Escrow Amount, an amount equal to the Claimed Amount or not incurred by the Buyer) shall be borne and paid exclusively by Agreed Amount, as applicable. If the Indemnifying Party; (ii) Party in such response contests the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed payment of all material developments and events relating to such Third Party Claim. The Seller shall be entitledor part of the Claimed Amount, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The then the Indemnifying Party and the Indemnified Party shall be liable for any settlement of any Third-Party Claim effected pursuant use good faith efforts to and resolve such dispute in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder10.3(c) below.
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Procedure for Claims. If a (a) A claim for indemnification pursuant for any matter not involving a Third-Party Claim may be asserted by notice to: (i) the Sellers’ Representative, in the case of a claim against the Sellers; and (ii) the Purchaser, in the case of a claim against the Purchaser; provided that failure to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified so notify the applicable Indemnifying Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) to the Seller after not preclude the Indemnified Party becomes aware from any indemnification which it may claim in accordance with this ARTICLE IX, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. For the avoidance of doubt, in each case where the Indemnified Party or the Indemnifying Party is, collectively, the Sellers, then in each such case all references to such Indemnified Party or Indemnifying Party, as the case may be, in this Section 9.08 shall be deemed (except for provisions relating to an obligation to make or a right to receive any payments) to refer to the Sellers’ Representative acting on behalf of such Indemnified Party or Indemnifying Party, as applicable.
(b) In the event of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) aboveThird-Party Claim, the Indemnified Party shall cause written notice of the assertion of any Third-Party Claim of which it has knowledge that is covered by the indemnity set forth in this ARTICLE IX to be forwarded to: (i) the Sellers’ Representative, in the case of a claim against the Sellers; and (ii) the Purchaser, in the case of a claim against the Purchaser (the recipient of such Third-Party Claim referred to as the “Third-Party Claim Indemnifying Party”). The failure of any the Indemnified Party to give timely reasonably prompt notice hereunder of any Third-Party Claim shall not release, waive or otherwise affect rights the Third-Party Claim Indemnifying Party’s obligations with respect thereto, except to indemnification hereunder. In the case extent that the Third-Party Claim Indemnifying Party is actually and materially prejudiced thereby.
(c) Upon receipt of a Claim brought pursuant to Section 8.2 involving the assertion notice of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Third-Party Claim”)Claim for indemnity from an Indemnified Party, the Buyer Indemnifying Party shall determine and conduct be entitled, by notice to the defense, compromise or settlement Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of such Third Third-Party Claim, to assume the defense and control of such Third-Party Claim; provided that (ai) all the Indemnifying Party shall allow the Indemnified Party a reasonable expenses relating opportunity to participate in the defense of such Third Third-Party Claim with its own counsel and at its own expense and (whether ii) subject to the terms of this ARTICLE IX, the Indemnifying Party shall pay the reasonable fees and expenses of one (1) outside counsel of the Indemnified Party in the event that the Third-Party Claim of which the Indemnifying Party seeks to assume control involves a claim that outside legal counsel to the Indemnified Party has advised the Indemnified Party is inappropriate for joint representation because of an actual conflict of interest between the Indemnified Party and the Indemnifying Party with respect to such Third-Party Claim. Such assumption of the conduct and control of the settlement or defense shall not incurred by the Buyer) shall be borne and paid exclusively deemed to be an admission or assumption of liability by the Indemnifying Party; (ii) . If the Seller Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 9.08(c), the Indemnified Party shall make available be entitled to assume and control such defense, but the Buyer any documents and materials Indemnifying Party may nonetheless participate in their possession or control that may be necessary to the defense of such Third Third-Party Claim with its own counsel and at its own expense. The Indemnified Party shall, and shall cause each of its Affiliates and representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third-Party Claim; , including by furnishing books and (c) the Buyer shall keep the Seller informed Records, personnel and witnesses, as appropriate for any defense of all material developments and events relating to such Third Third-Party Claim. The Seller If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall be entitledauthorized to consent to a settlement or compromise of, at or the entry of any judgment arising from, any Third-Party Claim, in its sole option discretion and expensewithout the consent of any Indemnified Party; provided that such compromise, settlement or judgment does not involve any finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party, does not result in a liability or the creation of a financial or other obligation of or restriction on any Indemnified Party, and provides to participate in, but not to determine or conduct, any defense and investigation each Indemnified Party an unqualified release from all liability in respect of such Third Third-Party Claim or settlement negotiations with respect Claim.
(d) Each Party hereto agrees to provide reasonable access to the other Parties to such Third Party Claim. The Indemnifying Party shall documents and information concerning the Group Companies as may be liable for any reasonably requested in connection with the defense, negotiation or settlement of any Third-Party Claim effected pursuant Claim.
(e) The Indemnified Party shall not, without prior approval (such approval not to and in accordance with this Section 8.4 and for any final judgment (subject to any right be unreasonably withheld) of appeal). If there is a Third the Third-Party Claim thatIndemnifying Party, if adversely determined would give rise settle or compromise any Third-Party Claim or permit a default or consent to a right entry of recovery for Damages hereunderany judgment, then any amounts incurred by unless the claimant or claimants and the Indemnified Parties Party provide to the Third-Party Claim Indemnifying Party an unqualified release from all liability in defense of such claim, regardless respect of the outcome of such claim, shall be deemed “Damages” hereunderThird-Party Claim.
Appears in 1 contract
Samples: Share Purchase Agreement (Factset Research Systems Inc)
Procedure for Claims. If (a) Promptly after obtaining knowledge of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such party seeking indemnification (the “Indemnified Party”) shall give written notice of such claim (a “Claim Notice”"Notice of Claim") to the Seller after other party in accordance with the Indemnified Party becomes aware terms of any factthe Escrow Agreement. The Notice of Claim shall set forth a brief description of the facts giving rise to such claim and the amount (or a reasonable estimate) of the liability, condition loss, damage or event expense suffered, or which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject suffered, by the party seeking indemnification, and shall be accompanied by all documentation relevant to the provisions claim against the indemnified party.
(b) In the case of Section 8.2(g) abovea claim between the parties hereto, the failure terms of any Indemnified Party to give timely notice hereunder the Escrow Agreement shall not affect rights to indemnification hereundercontrol the resolution of such claim(s). In the case of a Claim brought pursuant to Section 8.2 involving third-party claim, upon receiving the assertion Notice of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer indemnifying party shall determine and conduct the defenseresist, compromise settle or settlement otherwise dispose of such Third Party Claimclaim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all settlements, judgments, costs and expenses, including the reasonable fees and expenses of any counsel retained. The indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the indemnified party's expense unless:
(ai) all reasonable expenses relating the employment has been specifically authorized by the indemnifying party in writing;
(ii) the indemnifying party has improperly failed to assume the defense and employ counsel; or
(iii) the named parties to any action (including any impleaded parties) include the Merger Sub, InterCept and/or either Company or the Shareholders, and the indemnified party has been advised by such counsel that representation of Merger Sub, InterCept and/or either Company or the Shareholders by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case, if the indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall have neither the right nor the obligation to assume the defense of such Third Party Claim action on behalf of the indemnified party).
(c) The party seeking indemnification shall comply with the foregoing procedure for each claim arising hereunder, whether or not incurred the amount of such claims exceeds any minimum amount. All Notices of Claim for general contingencies must be delivered within the time frame permitted by the BuyerEscrow Agreement for the party making such claim(s) to collect from the Escrow Fund, as defined in the Escrow Agreement. The indemnified party shall be borne cooperate with the indemnifying party in defending any such claim and paid exclusively provide any books, records, information or testimony requested, which is in the hands of or under the control of the indemnified party or obtainable by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and indemnified party without unreasonable expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder.
Appears in 1 contract
Samples: Acquisition and Merger Agreement (Intercept Group Inc)
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) to the relevant Seller and to Sellers' Representative (without any liability to Sellers' Representative) promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above, the 8.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunderhereunder except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure, and then only to the extent thereof. In the case of a Claim brought pursuant to Section 8.2 Sections 8.2(a)(i) or 8.2(a)(ii) involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall shall, without derogating from the rights of the relevant Seller to defend himself/herself and the rights thereof, determine and conduct the defense, compromise or settlement of such Third Party Claim, provided however, that Buyer shall not agree to any settlement or compromise relating to Seller(s) or affecting a Seller or Sellers' rights without the prior written consent of such Seller(s), which consent shall not be unreasonably withheld; and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the relevant Indemnifying Party; (ii) the Seller Indemnifying Party shall make available to the Buyer any documents and materials in their the possession or control thereof that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the relevant Seller and the Sellers’ Representative informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The respective Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected affected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the respective Indemnified Parties Party in the defense of such claimclaim conducted in good faith, regardless of the outcome of such claim, shall be deemed “Damages” hereunder. In the event a Claim for indemnification is made against all Sellers' Sellers' Representative shall act as representative of all Sellers for the purpose of this Section 8.4.
Appears in 1 contract
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 9.2 (a “"Claim”") is to be made by a Buyer Parent Indemnified Party entitled to indemnification hereunder, the Buyer Parent Indemnified Party claiming such indemnification (the “"Indemnified Party”") shall give written notice (a “"Claim Notice”") to the Seller Shareholder Representative promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 9.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure, and then only to the extent thereof. In the case of a Claim brought pursuant to Section 8.2 9.2(a)(i) (but not 9.2(a) (ii) or 9.2(a)(iv)) involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third "Third-Party Claim”"), if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Shareholder Representative shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Shareholder Representative shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Shareholder Representative elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Buyer shall determine Indemnified Party may, at its own cost and conduct expense, participate in the defenseinvestigation, compromise or settlement of such Third Party Claim, trial and (a) all reasonable expenses relating to the defense of such Third Third-Party Claim (whether Claim; provided that, if thSe named persons to a lawsuit or not incurred other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by the Buyer) shall counsel that there may be borne and paid exclusively by one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party; (ii) , the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party's cost, risk and expense, to participate in, but not retain one firm of separate counsel of its own choosing. If the Shareholder Representative fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or settlement negotiations in accordance with respect this Section 9.2(b) within fifteen (15) calendar days after receipt of the 50 Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such Third effect to the Shareholder Representative) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party ClaimClaim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Shareholder Representative, which consent shall not be unreasonably withheld. In the event the Shareholder Representative assumes the defense of the claim, the Shareholder Representative shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Shareholder Representative reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 9.2(b) and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder.
Appears in 1 contract
Procedure for Claims. If a (a) In the event that any claim or demand for indemnification pursuant which an Indemnifying Party would be liable to Section 8.2 (a “Claim”) an Indemnified Party hereunder is to be made asserted against an Indemnified Party by a Buyer third party, the Indemnified Party entitled to indemnification hereunder, shall promptly (but in no event later than twenty (20) days after notice thereof) notify the Buyer Indemnified Indemnifying Party claiming of such indemnification claim or demand (the “Indemnified Party”) shall give written notice (a “Claim Notice”), specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand). The Indemnifying Party shall have thirty (30) days from the receipt of the Claim Notice (the “Notice Period”) to the Seller after notify the Indemnified Party becomes aware (i) whether or not the Indemnifying Party disputes the Indemnifying Party’s liability to the Indemnified Party hereunder for Losses with respect to such claim or demand and (ii) if the Indemnifying Party does not dispute such liability, whether or not the Indemnifying Party desires to defend against such claim or demand, provided that the Indemnified Party is hereby authorized (but not obligated) prior to and during the Notice Period to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect the Indemnified Party’s interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party does not dispute the Indemnifying Party’s obligation to indemnify hereunder and desires to defend the Indemnified Party against such claim or demand then, except as hereinafter provided, the Indemnifying Party shall have the right to defend (with counsel reasonably satisfactory to the Indemnified Party) such claim or demand; provided that, unless the Indemnified Party otherwise agrees in writing, the Indemnifying Party may not settle any matter (in whole or in part) unless such settlement includes a complete and unconditional release of the Indemnified Party. If the Indemnified Party desires to participate in, but not control, any such defense or settlement the Indemnified Party may do so at its sole cost and expense. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the Indemnified Party, without waiving any rights against the Indemnifying Party, may settle or defend against any such claim in the Indemnified Party’s sole discretion and, if it is ultimately determined that the Indemnifying Party is responsible therefor under this Article VIII, then the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any factsettlement or judgment and all indemnifiable costs and expenses of the Indemnified Party with respect thereto.
(b) If at any time, condition or event in the reasonable opinion of the Indemnified Party, notice of which may give rise to Damages for which indemnification may shall be sought under Section 8.2.Subject given in writing to the provisions Indemnifying Party, any such claim or demand seeks material prospective non-monetary relief which could have a materially adverse effect on the business, operations, results of Section 8.2(g) aboveoperations, the failure assets, properties or condition, financial and otherwise, of any Indemnified Party, the Indemnified Party shall have the right to give timely notice hereunder shall not affect rights to indemnification hereunder. In control or assume (as the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (amay be) all reasonable expenses relating to the defense of any such Third Party Claim (whether claim or not incurred by demand and the Buyer) amount of any judgment or settlement and the reasonable costs and expenses of defense shall be borne and paid exclusively by included as part of the indemnification obligations of the Indemnifying Party; (ii) Party hereunder. If the Seller Indemnified Party should elect to exercise such right, the Indemnifying Party shall make available to have the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitledright, at its sole option and own expense, to participate in, but not to determine or conductcontrol, any the defense and investigation of such Third Party Claim claim or settlement negotiations with respect to such Third Party Claimdemand. The If the Indemnifying Party should elect to exercise such right to participate, the Indemnifying Party’s consent shall be liable required for any settlement of any Third-such claim or demand, which consent shall not be unreasonably withheld.
(c) In the event the Indemnified Party should have a claim against the Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected by a third party, the Indemnified Party shall promptly send a Claim effected pursuant Notice with respect to and in accordance with this Section 8.4 and for any final judgment (subject such claim to any right of appeal)the Indemnifying Party. If there is the Indemnifying Party does not notify the Indemnified Party within the Notice Period that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a Third liability of the Indemnifying Party Claim thathereunder.
(d) The Indemnified Party’s failure to give reasonably prompt notice to the Indemnifying Party of any actual, if adversely determined would threatened or possible claim or demand which may give rise to a right of recovery for Damages hereunder, then indemnification hereunder shall not relieve the Indemnifying Party of any amounts incurred by liability which the Indemnifying Party may have to the Indemnified Parties in defense of Party unless the failure to give such claim, regardless of notice adversely prejudiced the outcome of such claim, shall be deemed “Damages” hereunderIndemnifying Party.
Appears in 1 contract
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Losses (a “an "Indemnified Claim”") -------------------- ----------------- is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”") shall give written ----------------- notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") ------------ ------------------ as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which when may give rise to Damages Losses for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder6. In the case of a an Indemnified Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party ----------- Claim”"), (a) the Buyer Indemnifying Party shall determine be entitled, if it so elects, at its ----- own cost, risk and conduct expense (i) to take control of the defense, compromise or settlement defense and investigation of such Third Third-Party Claim, and (aii) all reasonable expenses relating to pursue the defense thereof by appropriate actions or proceedings, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the defense of such Third Indemnified Party Claim to handle and defend the same, and (whether or not incurred by b) the Buyer) Indemnifying Party shall be borne and paid exclusively by entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party; (ii) Party elects to assume control of the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third lawsuit or other legal action in accordance with this Section 6.2, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim. If the Indemnifying Party fails to assume the defense of such Third-Party Claim or settlement negotiations in accordance with respect this Section within 30 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such Third effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party ClaimClaim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 6 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for Damages hereunder, then indemnify and hold harmless each Indemnified Party from and against any amounts and all Losses incurred by the Indemnified Parties in defense Party by reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
Appears in 1 contract
Samples: Series a Preferred Stock Purchase Agreement (Cadmus Communications Corp/New)
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”) "), shall give written notice specifying in reasonable detail the nature of any such Claim (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 9.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Buyer shall determine Indemnified Party may, at its own cost and conduct expense, participate in the defenseinvestigation, compromise or settlement trial and defense of such Third Third-Party Claim. So long as the Indemnifying Party is defending in good faith any such Third-Party Claim, and (a) all reasonable expenses relating to the defense of Indemnified Party shall not settle or compromise such Third Third-Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller Claim. The Indemnified Party shall make available to the Buyer Indemnifying Party or its Representatives all records and other materials reasonably required by them for their use in contesting any documents Third-Party Claim and materials shall cooperate fully with the Indemnifying Party in their possession or control that may be necessary the defense of all such Claims. If the Indemnifying Party fails to assume the defense of such Third Third-Party ClaimClaim in accordance with this Section 9.2 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; and (c) provided that such Third-Party Claim shall not be compromised or settled without the Buyer written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Seller Indemnified Party reasonably informed of all material developments the progress of any such defense, compromise or settlement, and events relating to in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such Third Party Claim. The Seller shall be entitleddefense, at its sole option and expense, to participate in, but not to determine compromise or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claimsettlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 9.2 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder.
Appears in 1 contract
Procedure for Claims. If a (a) The provisions of this Section 9.4 shall govern any claim for indemnification by a Buyer Indemnitee pursuant to Section 8.2 9.2 or by any Sellers pursuant to Section 9.3 (a “Claim”each such indemnified party an "Indemnitee") is against any Sellers pursuant to be made by a Section 9.2 or against Buyer Indemnified Party entitled pursuant to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification Section 9.3 (the “Indemnified Party”"Indemnitor").
(b) shall give Each Indemnitee agrees to provide Indemnitor prompt written notice of any claim, assertion, event or proceeding concerning any Damages as to which it may request indemnification hereunder (a “Claim the "Indemnification Notice”) "); provided, however, that failure to notify Indemnitor shall not relieve Indemnitor of its indemnity obligation, except to the Seller after extent Indemnitor is actually prejudiced in its defense of the Indemnified Party becomes aware of action by such failure. In connection with any fact, condition or event third party claim which may give rise to indemnification by Indemnitor for any Damages for which indemnification may be sought under Section 8.2.Subject resulting from or arising out of any claim or legal proceeding by a person other than the parties hereto (a "Third Party Claim"), the Indemnitor, at the sole cost and expense of the Indemnitor, may, after receiving the Indemnification Notice and at any time prior to the provisions resolution of Section 8.2(g) abovesuch Third Party Claim, upon written notice to the failure Indemnitee, assume the defense of any Indemnified such Third Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In Claim if: (i) Indemnitor (which, in the case of a Claim brought any claim pursuant to Section 8.2 involving 9.2, shall mean all Sellers) acknowledges in writing the assertion obligation of a claim by a third party (whether Indemnitor to indemnify fully the Indemnitee pursuant to a lawsuitSection 9.2 or 9.3, other legal action or otherwiseas applicable, a “subject to the limitations of Section 9.5, with respect to such Third Party Claim and (ii) the Third Party Claim involved seeks (and continues to seek) solely monetary damages (clauses (i) and (ii) are collectively referred to as the "Litigation Conditions"). Notwithstanding the foregoing, in respect of Third Party Claims involving any Special Indemnifiable Item (as defined in Section 9.5(b) hereof) involving both non-monetary damages and monetary damages, the Indemnitor shall have the right, at its sole cost and expense, to assume the defense of such Third Party Claim”, provided Indemnitor satisfies Litigation Condition in clause (i), and Indemnitor consults and confers with Indemnitee on a regular basis in respect of such claim. The Indemnitee shall be entitled to participate in any Third Party Claim at its own expense after such assumption of any Third Party Claim by Indemnitor as provided in this Section 9.4. Notwithstanding the preceding two sentences, in the event of any Third Party Claim for an amount in excess of the remaining aggregate liability of Indemnitor under Section 9.5(c) hereof, such Third Party Claim shall be jointly defended by Indemnitor and Indemnitee. Upon assuming defense of any Third Party Claim in accordance with this Section 9.4, Indemnitor shall agree to be fully responsible for, and to pay, the entire amount of any monetary judgment or settlement such Indemnitor would be obligated to pay pursuant to Section 9.2 or 9.3, as applicable, subject to the limitations of Section 9.5. Indemnitor shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld or delayed). Indemnitor shall not, without the prior written consent of the Indemnitee, enter into any compromise or settlement which commits the Indemnitee to take, or to forbear to take, any action. Indemnitee shall provide Indemnitor with access to its records and personnel relating to any such Third Party Claim during normal business hours and shall otherwise cooperate with Indemnitor in the defense or settlement thereof, and Indemnitor shall reimburse Indemnitee for all its reasonable out-of-pocket-expenses in connection therewith. If Indemnitor elects to direct the defense of any such Third Party Claim, Indemnitee shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted Damages unless (A)Indemnitor consents in writing to such payment, (B) Indemnitor withdraws from the defense of such asserted Damages, or (C) a final judgment from which no appeal may be taken by or on behalf of Indemnitor is entered against Indemnitee for such Damages. If Indemnitor shall fail to defend a Third Party Claim, or if after commencing or undertaking any such defense to a Third Party Claim, fail to prosecute, or withdraw from such defense to a Third Party Claim, Indemnitee shall have the right to undertake the defense or settlement thereof, at Indemnitor's expense. Indemnitee shall have the right to defend a Third Party Claim prior to Indemnitor assuming the defense of such claim in accordance with the terms of this Section 9.4 and all expenses reasonably incurred by Indemnitee in such defense shall constitute indemnifiable Damages.
(c) In the event that the Sellers receive Indemnification Notice pursuant to Section 9.4(b) of any Third Party Claim and elect not to or otherwise decline to assume defense of any Third Party Claim for which Buyer has delivered an Indemnification Notice, Buyer shall take all actions reasonably necessary such that Sellers may, at their election and expense, participate in the defense of such Third Party Claim to the extent that any Seller may request. Without limiting the generality of the foregoing, (i) Buyer shall use all reasonable efforts to schedule all meetings, conferences and discussions regarding such Third Party Claim at a time when, and in place where, Sellers can participate, (ii) Buyer shall cause, during normal business hours on reasonable advance notice, to be retained and made available to Sellers as and when requested by any Seller in connection with such Third Party Claim (x) all information in the possession of or obtained by Buyer or any of its Subsidiaries and (y) personnel of the Buyer and its Subsidiaries with knowledge or information thereof and (iii) Buyer shall determine and conduct give Sellers reasonable advance notice of the defense, compromise or terms of any proposed settlement of such Third Party Claim, and (a) all reasonable expenses relating to including the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable proposed date for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement.
Appears in 1 contract
Samples: Merger Agreement (Mothers Work Inc)
Procedure for Claims. If The following procedures shall be applicable with respect to indemnification for claims arising in connection with any provision of this Agreement:
(a) Each indemnified party (the "Indemnified Party") agrees that upon its obtaining knowledge of facts indicating that there may be a basis for a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) to the Seller after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought indemnity under Section 8.2.Subject to the provisions of Section 8.2(g) abovethis Agreement, including receipt by it of notice of any demand, assertion, claim, action or proceeding, judicial or otherwise (these actions are collectively, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party "Claim”"), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claimany matter as to which it may be entitled to indemnity under the provisions of this Agreement, it will give prompt notice thereof in writing to the other party (the "Indemnifying Party") together with a statement of all information respecting any of the foregoing as it shall then have. The Indemnifying Party shall not be liable obligated to indemnify the Indemnified Party for any settlement the increased amount of any Third-Claim which would otherwise have been payable to the extent that the increase in the amount of the Claim resulted from the lack of notice required by this provision.
(b) The Indemnifying Party shall in good faith at its sole cost and expense contest and defend by all appropriate legal proceedings, with counsel satisfactory to the Indemnified Party, any Claim effected pursuant with respect to which it is called upon to indemnify the Indemnified Party under the provisions of this Agreement; provided, however, that notice of the intention so to contest shall be delivered by the Indemnifying Party to the Indemnified Party within a reasonable time in light of the circumstances then and there existing. Any contest may be conducted in accordance with this Section 8.4 the name and for any final judgment (subject on behalf of the Indemnifying Party or the Indemnified Party as may be appropriate. The contest shall be conducted by attorneys engaged by the Indemnifying Party, but the Indemnified Party shall have the right to any right participate in those proceedings and to be represented by attorneys of appeal). If there is a Third Party Claim its own choosing at its cost and expense; provided, however, that, if adversely determined the named parties to any such proceeding (including any impeaded parties) include both the Indemnifying Party and the Indemnified Party or if the Indemnifying Party proposes that the same counsel. represent both the Indemnified Party and the Indemnifying Party and representation of both parties by the same counsel would give rise be inappropriate due to a right of recovery for Damages hereunderactual or potential differing interests between them, then the Indemnified Party shall have the fight to retain its own counsel at the cost and expense of the Indemnifying Party. If the Indemnified Party joins in any amounts contest, the Indemnifying Party shall have full authority to determine all action to be taken; provided, however, that the Indemnified Party shall have the right to approve any settlement, which approval shall not be unreasonably withheld (it being understood that it shall not be unreasonable to withhold consent to any settlement involving injunctive or other equitable relief).
(c) The Indemnified Party agrees to afford the Indemnifying Party and its counsel the opportunity to be present at, and to participate in, conferences with all persons, including governmental authorities asserting any Claim against the Indemnified Party or conferences with representatives of or counsel for those persons. So long as the Indemnifying Party is defending in good faith that Claim, the Indemnified Party shall cooperate with and assist the Indemnifying Party to the extent reasonably possible, but the Indemnifying Party shall bear and pay any and all expenses incurred by the Indemnified Parties Party in providing such cooperation and assistance, either directly or upon request of the Indemnified Party. The Indemnified Party shall be kept fully informed of the defense of such claimany Claim at all stages thereof. In the event that the Indemnifying Party fails to timely and in good faith defend against that Claim, regardless the Indemnified Party shall have the right, but not the obligation, to defend the same and may make any compromise or settlement thereof and recover and be indemnified for the entire cost thereof from the Indemnifying Party, including, but not limited to, legal expenses, disbursements and all amounts paid as a result of that Claim or any compromise or settlement thereof. If, in good faith, the Indemnified Party concludes that there are specific defenses available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party, or that those Claims may have a material adverse effect on the Indemnified Party with respect to the scope of the outcome foregoing indemnities, then the Indemnified Party shall have the right to direct the defense of that Claim and the Indemnifying Party shall bear the expenses thereof. In the event that the Indemnified Party is, directly or indirectly, conducting a defense against any such claimClaim, the Indemnifying Party shall be deemed “Damages” hereundercooperate with the Indemnified Party in that defense and make available to it all those witnesses, records, materials and information in its possession or under its control relating thereto.
(d) The Indemnifying Party shall pay to the Indemnified Party the amount to which the Indemnified Party may become entitled by reason of the provisions of Article VI of this Agreement within fifteen (15) business days after any the amount owed is finally determined either by mutual agreement of the parties to this Agreement or pursuant to the final unappealable judgment of a court of competent jurisdiction and the Indemnifying Party agrees to pay all costs and expenses in connection with obtaining any bond required to appeal any judgment.
Appears in 1 contract
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made under this Article 11 by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”") shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above, the 11.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Buyer Indemnifying Party shall determine acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and conduct expense, (1) to take control of the defensedefense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such Third lawsuit or other legal action in accordance with this Section 11.4, the Indemnified Party Claimmay, at its own cost and (a) all reasonable expenses relating to expense, participate in the investigation, trial and defense of such Third Third-Party Claim (whether Claim; provided that, if the named persons to a lawsuit or not incurred other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by the Buyer) shall counsel that there may be borne and paid exclusively by one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party; (ii) , the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party's reasonable cost, risk and expense, to participate in, but not separate counsel of its own choosing. If the Indemnifying Party fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or settlement negotiations in accordance with respect this Section 11.4 within ten (10) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such Third effect to the Indemnifying Party) have the right to undertake the defense, compromise and settlement of such Third-Party Claim. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 11.4 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for indemnify and hold harmless each Indemnified Party from and against any and all Damages hereunder, then any amounts incurred by the Indemnified Parties in defense reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
Appears in 1 contract
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be --------------------- made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”) "), shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 8.2. The failure of any Indemnified Party to give timely notice (within five (5) business days) hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage or prejudice caused by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Buyer Indemnifying Party shall determine and conduct acknowledge in writing to 37 the defense, compromise or settlement Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third Third-Party Claim, and then (aA) all reasonable expenses relating to the defense of such Third Indemnifying Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller entitled and, if it so elects, shall be entitled, obligated at its sole option own cost and expense, expense (1) to participate in, but not to determine or conduct, any take control of the defense and investigation of such Third Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement negotiations shall be made only with respect the written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 8.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel and such counsel reasonably determines that there may be one or more legal defenses available to such Third Indemnified Party Claimthat are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall be entitled to separate counsel reasonably acceptable to the Indemnifying Party and at the Indemnifying Party's reasonable cost and expense (including the reasonable fees and expenses of counsel). If the Indemnifying Party fails to assume the defense of such Third-Party Claim in accordance with this Section 8.2 within 15 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to engage counsel reasonably acceptable to the Indemnifying Party to undertake the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party at the Indemnifying Party's reasonable cost and expense (including the reasonable fees and expenses of counsel); provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The parties shall use commercially reasonable efforts to minimize Damages from Third-Party Claims shall act in good faith in responding to, defending against, settling or otherwise dealing with such claims, notwithstanding any dispute as to liability as between the parties under this Section 8.2. The parties shall also cooperate in any such defense, give each other reasonable access to all information relevant thereto and use commercially reasonable efforts to make employees and other representatives available on a mutually convenient basis to provide additional information and explanation of any material provided in connection therewith. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 8.2 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for indemnify and hold harmless each Indemnified Party from and against any and all Damages hereunder, then any amounts incurred by the Indemnified Parties in defense reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
Appears in 1 contract
Samples: Merger Agreement (Unidigital Inc)
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”') is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”"), subject to clause (ii) below, shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 6.4. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Buyer Indemnifying Party shall determine acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and conduct expense, (1) to take control of the defensedefense and investigation such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such Third lawsuit or other legal action in accordance with this Section 6.4, the Indemnified Party Claimmay, at its own cost and (a) all reasonable expenses relating to expense, participate in the investigation, trial and defense of such Third Third-Party Claim (whether Claim; provided that, if the named persons to a lawsuit or not incurred other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by the Buyer) shall counsel that there may be borne and paid exclusively by one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party; (ii) , the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party's cost, risk and expense, to participate in, but not separate counsel of its own choosing. If the Indemnifying Party fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or settlement negotiations in accordance with respect this Section 6.4 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall upon delivering notice to such Third effect to the Indemnifying Party Claimhave the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 6.4 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for indemnify and hold harmless each Indemnified Party from and against any and all Damages hereunder, then any amounts incurred by the Indemnified Parties in defense reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
Appears in 1 contract
Procedure for Claims. If Within thirty days after obtaining written notice of any claim or demand which has given rise to, or could reasonably give rise to, a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such party seeking indemnification (the “Indemnified Party”) shall give written notice of such claim (a “Claim Notice”"Notice of Claim") to the Seller after other party. The Notice of Claim shall set forth a brief description of the Indemnified Party becomes aware facts giving rise to such claim and the amount (or a reasonable estimate) of any factthe loss, condition damage or event expense suffered, or which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to suffered, by the provisions party seeking indemnification. Upon receiving the Notice of Section 8.2(g) aboveClaim, the failure indemnifying party shall resist, settle or otherwise dispose of such claim in such manner as it shall deem appropriate, including the employment of counsel, and shall be responsible for the payment of all expenses, including the reasonable fees and expenses of such counsel. The indemnified party shall have the right to employ separate counsel in any Indemnified Party such action and to give participate in or assume the defense thereof, but the fees and expenses of such counsel shall be at the indemnified party's expense unless (i) the employment has been specifically authorized by the indemnifying party in writing, (ii) the indemnifying party has failed to assume the defense and employ counsel in a timely notice hereunder shall not affect rights manner or (iii) the named parties to indemnification hereunder. In any action (including any impleaded parties) include both Purchaser and the case company, and the indemnified party has been advised by such counsel that representation of a Claim brought pursuant the Company and the Purchaser by the same counsel would be inappropriate under applicable standards of professional conduct due to Section 8.2 involving actual or potential differing interests between them (in which case, if the assertion indemnified party notifies the indemnifying party in writing that the indemnified party elects to employ separate counsel at the expense of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”)the indemnifying party, the Buyer indemnifying party shall determine and conduct have neither the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating right nor the obligation to assume the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless action on behalf of the outcome of such claim, shall be deemed “Damages” hereunderindemnified party).
Appears in 1 contract
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”") shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject 9.2; provided, that if the Indemnified Party is a Stockholder Indemnified Party, such Claim Notice shall only be valid if it is delivered by the Stockholder Agent; and provided further, that if the Indemnified Party is a Parent Indemnified Party, such Claim Notice shall be valid if it is delivered to the provisions of Section 8.2(g) above, the Stockholder Agent. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure, and then only to the extent thereof. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third "Third-Party Claim”"), if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Buyer shall determine Indemnified Party may, at its own cost and conduct expense, participate in the defenseinvestigation, compromise or settlement of such Third Party Claim, trial and (a) all reasonable expenses relating to the defense of such Third Third-Party Claim (whether Claim; provided that, if the named persons to a lawsuit or not incurred other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by the Buyer) shall counsel that there may be borne and paid exclusively by one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party; (ii) , the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party's cost, risk and expense, to participate in, but not retain one firm of separate counsel of its own choosing. If the Indemnifying Party fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or settlement negotiations in accordance with respect this Section 9.2 within ten (10) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such Third effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party ClaimClaim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 9.2 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for indemnify and hold harmless each Indemnified Party from and against any and all Damages hereunder, then any amounts incurred by the Indemnified Parties in defense reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
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Procedure for Claims. (i) If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”"), subject to clause (ii) below, shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party"), as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 9.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that the Indemnifying Party demonstrates actual material damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Buyer shall determine Indemnified Party may, at its own cost and conduct expense, participate in the defenseinvestigation, compromise or settlement of such Third Party Claim, trial and (a) all reasonable expenses relating to the defense of such Third Third-Party Claim (whether Claim; provided that, if the named persons to a lawsuit or not incurred other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by the Buyer) shall counsel that there may be borne and paid exclusively by one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party; (ii) , the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party's cost, risk and expense, to participate in, but not separate counsel of its own choosing. If the Indemnifying Party fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or settlement negotiations in accordance with respect this Section 9.2 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such Third effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party ClaimClaim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 9.2 and for any final judgment (subject to any right of appeal). If there , and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.
(ii) Notwithstanding clause (i) above, in the event that any Indemnified Party is a Third Party Stockholder Indemnified Party, any Claim thatNotice, election or other notification or correspondence required pursuant to such clause (i) shall only be valid if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred it is delivered by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunderStockholders to Vertex or DCS.
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Procedure for Claims. If (a) Promptly after an Indemnified Party has either (i) become aware of any facts or circumstances pursuant to which it may be entitled to indemnification hereunder or (ii) received notice of the commencement of any claim or Proceeding by a Person not a party to this Agreement or by a Person not an Affiliate of a party to this Agreement (each, a “Third Party”) which could reasonably be expected to give rise to a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified against an Indemnifying Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) party shall give the Indemnifying Party written notice (a “Claim Notice”) of such facts, circumstances, claim or Proceeding. Such notice shall state, to the Seller after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) aboveextent known, the nature and the basis of such claim or Proceeding and, if reasonably possible, an estimate of the amount thereof. The failure of any Indemnified Party to give timely notice hereunder as provided herein shall not affect rights relieve any Indemnifying Party of its obligations under this Section 7 except to the extent that the failure to timely give such notice is materially prejudicial to any Indemnifying Party’s ability to adequately defend itself against any claim for indemnification hereunder. In .
(b) Within thirty (30) Business Days (or, if in connection with a Third Party Claim, fifteen (15) Business Days) after receiving notice of a claim for indemnification or reimbursement hereunder, the Indemnifying Party shall, by written notice to the Indemnified Party, either (i) concede or deny liability for the claim in whole or in part, or (ii) in the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim asserted by a third party Third Party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), advise that the Buyer matters set forth in the notice are, or will be, subject to contest or Proceedings not yet finally resolved. If the applicable Indemnifying Party concedes liability in whole or in part, it shall, within thirty (30) Business Days of such concession, pay the amount of the claim to the Indemnified Party to the extent of the liability conceded. Any such payment shall determine be made in immediately available funds equal to the amount of such claim so conceded and conduct payable. If the defenseapplicable Indemnifying Party denies liability in whole or in part or advises that the matters set forth in the notice are, compromise or will be, subject to contest or Proceedings not yet finally resolved, then the applicable Indemnifying Party shall make no payment (except for the amount of any conceded liability payable as set forth above) until the matter is resolved in accordance with this Agreement.
(c) In the case of any Third Party Claim, if within fifteen (15) Business Days after receiving the notice described in Section 7.4(a), the Indemnifying Party (i) gives written notice to the Indemnified Party stating that the Indemnifying Party would be liable under the provisions hereof for indemnity in the amount of such claim if such claim were valid and that the applicable Indemnifying Party disputes and intends to defend against such claim, liability or expense at its own cost and expense, and (ii) provides assurance reasonably acceptable to such Indemnified Party that such indemnification will, if the matters underlying such Third Party Claim are ultimately determined or agreed to be indemnifiable hereunder (in which event a settlement of such Third Party ClaimClaim by or with the consent of the Indemnifying Party will be deemed agreement of such obligation to indemnify unless otherwise explicitly agreed otherwise), be paid fully and promptly and such Indemnified Party will not incur cost or expense during the proceeding, then counsel for the defense shall be selected by the Indemnifying Party (a) all reasonable expenses relating subject to the consent of the Indemnified Party which consent shall not be unreasonably withheld, conditioned or delayed) and such applicable Indemnifying Party shall, in such event, not be required to make any payment to the Indemnified Party with respect to such claim, Liability or expense as long as the Indemnifying Party is conducting a good faith and diligent defense at its own expense; provided, however, that the Indemnifying Party’s rights to assume any such defense shall apply only in the event that the amounts in controversy in all outstanding claims that could be the subject of indemnification under this Agreement do not exceed in the aggregate any limitations applicable with respect to such Indemnifying Party’s indemnification obligations hereunder. If the Indemnifying Party assumes such defense in accordance with the preceding sentence, it shall have the right, with the consent of the Indemnified Party, which consent shall not be unreasonably withheld, to settle all indemnifiable matters related to Third Party Claims which are susceptible to being settled; provided that the Indemnifying Party’s obligation to indemnify such Indemnified Party therefor will be fully satisfied only by payment of money by such Indemnifying Party pursuant to a settlement which includes a complete release of such Third Indemnified Party. The Indemnifying Party Claim (whether shall keep the Indemnified Party apprised of the status of the claim, liability or not incurred by expense and any resulting suit, proceeding or enforcement action, shall furnish such Indemnified Party with all documents and information that such Indemnified Party shall reasonably request and shall consult with such Indemnified Party prior to acting on major matters, including settlement discussions. Notwithstanding anything herein stated, the Buyer) applicable Indemnified Party shall be borne at all times have the right to fully participate in such defense at its own expense directly or through counsel. If no such notice of intent to dispute and paid exclusively defend is given by the Indemnifying Party; (ii) the Seller shall make available , or if such diligent good faith defense is not being or ceases to the Buyer any documents and materials in their possession or control that be conducted, such Indemnified Party may be necessary to undertake the defense of (with counsel selected by such Third Indemnified Party), and shall have the right to compromise or settle, such claim, liability or expense (exercising reasonable business judgment); provided that in the event the Indemnifying Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating does not consent to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim compromise or settlement negotiations in writing in advance thereof, then such compromise or settlement shall not be determinative or be taken into account in any way in determining whether an Indemnifying Party has any indemnity obligation with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement Claim or the amount of any Third-Party Claim effected pursuant to and in accordance Losses indemnifiable with this Section 8.4 and for any final judgment (subject to any right of appeal)respect thereto. If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of liability or expense is one that by its nature cannot be defended solely by the outcome of Indemnifying Party, then the applicable Indemnified party shall make available all information and assistance that the Indemnifying Party may reasonably request and shall cooperate with the Indemnifying Party in such claim, shall be deemed “Damages” hereunderdefense.
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Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”") shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject 10.2; provided, that if the Indemnified Party is a Stockholder Indemnified Party, such Claim Notice shall only be valid if it is delivered by the Stockholder Agent; and provided further, that if the Indemnified Party is a Parent Indemnified Party, such Claim Notice shall be valid if it is delivered to the provisions of Section 8.2(g) above, the Stockholder Agent. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure, and then only to the extent thereof. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third "Third-Party Claim”"), if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 10.2(b), the Buyer shall determine Indemnified Party may, at its own cost and conduct expense, participate in the defenseinvestigation, compromise or settlement of such Third Party Claim, trial and (a) all reasonable expenses relating to the defense of such Third Third-Party Claim (whether Claim; provided that, if the named persons to a lawsuit or not incurred other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by the Buyer) shall counsel that there may be borne and paid exclusively by one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party; (ii) , the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party's cost, risk and expense, to participate in, but not retain one firm of separate counsel of its own choosing. If the Indemnifying Party fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or settlement negotiations in accordance with respect this Section 10.2 within ten (10) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such Third effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party ClaimClaim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 10.2 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for indemnify and hold harmless each Indemnified Party from and against any and all Damages hereunder, then any amounts incurred by the Indemnified Parties in defense reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
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Procedure for Claims. If (a) In each instance, when a claim for indemnification pursuant to Section 8.2 10.2 (a “Claim”) is to be made by a Buyer an Indemnified Party entitled to indemnification hereunder, the Buyer aggregate amount of Damages sought with respect to one or more of the submitted Claims must exceed $5,000. The Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice to the other Party (a the “Claim NoticeIndemnifying Party”) to the Seller reasonably promptly after the Indemnified Party becomes aware of any fact, condition or event which that may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to 10.2, or receipt by the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely of notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 claim involving the assertion of a claim by a third party Third Party, including a Governmental Entity, that may give rise to Damages for which indemnification may be sought under Section 10.2 (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”). The failure of any Indemnified Party to give timely notice hereunder shall not affect its rights to indemnification hereunder, except and only to the extent that the Indemnifying Party suffers damage caused by such failure. The Indemnifying Party shall have 30 days (or such lesser number of days set forth in the notice as may be required by court proceeding in the event of a litigated matter) after receipt of the notice to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third Party Claim, in which case the Indemnifying Party shall be obligated to defend the Indemnified Party against such Third Party Claim. In the case of a Third Party Claim, subject to the limitations of Section 10.2, the Buyer party conducting the defense (the “Defending Party”) shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and and, subject to the limitations of Section 10.2, (a) all reasonable expenses relating to the defense of such Third Party Claim other party (whether or not incurred by the Buyer“Non-Defending Party”) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer Defending Party any documents and materials in their its or its Affiliates’ possession or control that may be necessary to the defense of such Third Party Claim; Claim and (cb) the Buyer Defending Party shall keep the Seller other Party reasonably informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitledNon- Defending Party, at its sole option and expense, to may participate in, but not to determine or conduct, in any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying , unless the Non-Defending Party shall have reasonably concluded, based on the written advice of counsel, that representation of the Non-Defending Party by the same counsel as represents the Defending Party would be liable for any settlement inappropriate due to an actual material conflict of interest between them, in which chase the Non-Defending Party’s participation shall be at the expense of the Defending Party. Except with the written consent of the Non-Defending Party (not to be unreasonably withheld, conditioned or delayed), the Defending Party will not, in the defense of a Third Party Claim, consent to the entry of any Third-judgment or enter into any compromise or settlement (w) which does not include as an unconditional term thereof the giving to the Indemnified Party Claim effected pursuant by the Third Party of a release from all liability with respect to and in accordance with this Section 8.4 and for any final judgment such suit, claim, action or proceeding; (subject to any right of appeal). If x) unless there is no finding or admission of (i) any violation of Law by the Indemnified Party (or any Affiliate thereof), (ii) any liability on the part of the Indemnified Party (or any Affiliate thereof) not indemnified hereunder or (iii) any violation of the rights of any Person and no effect on any other claims of a similar nature that may be made by the same Third Party against the Indemnified Party (or any Affiliate thereof); (y) which exceeds the applicable indemnification limitations as set forth herein; or (z) which provides for 35 injunctive or other non-monetary equitable relief against the Indemnified Party or its Affiliates or their respective businesses. (b) Notwithstanding the foregoing, if a Third Party Claim thatincludes or would reasonably be expected to include both a claim for Taxes that are Liabilities pursuant to Section 2.3(c) (“Purchaser Taxes”) and a claim for Taxes that are not Liabilities pursuant to Section 2.3(c) (“Seller Taxes”), and such claim for Seller Taxes is not separable from such a claim for Purchaser Taxes, Purchaser (if adversely determined the claim for Purchaser Taxes exceeds or reasonably would give rise be expected to a right of recovery exceed in amount the claim for Damages hereunderSeller Taxes) or otherwise Seller (Seller or Purchaser, then any amounts incurred by as the Indemnified Parties in case may be, the “Controlling Party”) shall be entitled to control the defense of such claimThird Party Claim (such Third Party Claim, regardless a “Tax Claim”). In such case, the other Party (Seller or Purchaser, as the case may be, the “Non-Controlling Party”) shall be entitled to participate fully (at the Non-Controlling Party’s sole expense) in the conduct of such Tax Claim and the Controlling Party shall not settle such Tax Claim without the consent of such Non- Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed). The costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned based on the relative amounts of the outcome Tax Claim that are Seller Taxes and that are Purchaser Taxes. ARTICLE 11 MISCELLANEOUS 11.1 Public Announcements. Other than as set forth in Section 7.1, no Party shall issue or make any public announcement, press release or other public disclosure regarding this Agreement or its subject matter without the prior approval of the other Party, except for any such claimdisclosure that is, in the opinion of the disclosing Party’s counsel, required by applicable Law or the rules of a stock exchange on which the securities of the disclosing Party are listed. If a Party is, in the opinion of its counsel, required by applicable Law or the rules of a stock exchange on which its securities are listed to make a public disclosure, such Party shall submit the proposed disclosure in writing as far in advance of the disclosure as practicable to the other Party and provide the other Party a reasonable opportunity to comment thereon. The contents of any public announcement, press release or other public disclosure that has been reviewed and approved by the reviewing Party or that is consistent with the foregoing may then be deemed “Damages” hereunderrereleased by any Party without a requirement for advance notice or reapproval.
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Samples: Purchase and Assumption Agreement
Procedure for Claims. If An Indemnified Party wishing to assert a claim for indemnification pursuant under this Article V shall deliver to Section 8.2 (the Indemnifying Party a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) to which contains (i) a description and the Seller after amount (the “Claimed Amount”) of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party becomes aware is entitled to indemnification under this Article V and a reasonable explanation of the basis therefor, and (iii) a demand for payment in the amount of such Damages. If the Indemnified Party is a Buyer and is seeking to enforce such claim pursuant to the Escrow Agreement, the Indemnifying Party shall deliver a copy of the Claim Notice to the Escrow Agent. Within 30 days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall: (I) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Claimed Amount, by check or by wire transfer; provided that if the Indemnified Party is a Buyer and is seeking to enforce such claim pursuant to the Escrow Agreement, the Indemnifying Party and the Indemnified Party shall deliver to the Escrow Agent, within three days following the delivery of such response, a written notice executed by both parties instructing the Escrow Agent to disburse the Claimed Amount to such Buyer), (II) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the “Agreed Amount”) (in which case such response shall be accompanied by a payment by the Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or by wire transfer; provided that if the Indemnified Party is a Buyer and is seeking to enforce such claim pursuant to the Escrow Agreement, the Indemnifying Party and the Indemnified Party shall deliver to the Escrow Agent, within three days following the delivery of such response, a written notice executed by both parties instructing the Escrow Agent to disburse the Agreed Amount to such Buyer), or (III) contest that the Indemnified Party is entitled to receive any factof the Claimed Amount. If the Indemnifying Party in such response contests the payment of all or part of the Claimed Amount, condition or event which may give rise the Indemnifying Party and the Indemnified Party shall use good faith efforts to Damages for which indemnification may be sought under Section 8.2.Subject resolve such dispute. If such dispute is not resolved within 60 days following the delivery by the Indemnifying Party of such response, the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of Section 8.2(g) above9.12. If the Indemnified Party is a Buyer and is seeking to enforce the claim that is the subject of such dispute pursuant to the Escrow Agreement, the failure of any Indemnifying Party and the Indemnified Party shall deliver to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case Escrow Agent, promptly following the resolution of a Claim brought the dispute pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise9.12, a “Third Party Claim”), written notice executed by both parties instructing the Buyer shall determine and conduct Escrow Agent as to what (if any) portion of the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) Escrow Fund shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating disbursed to such Third Party Claim. The Seller Buyer (which notice shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations consistent with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless terms of the outcome resolution of such claim, shall be deemed “Damages” hereunderthe dispute).
Appears in 1 contract
Procedure for Claims. If Promptly, but in any event within thirty (30) days after obtaining knowledge of any claims or demands which may give rise to, or could reasonably give rise to, a claim for indemnification pursuant to Section 8.2 hereunder (a “collectively, "Indemnification Claims" and, individually, the "Indemnification Claim”) is to be made by a Buyer Indemnified Party "), the party or parties entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification hereunder (the “"Indemnified Party”") shall give written notice to the party or parties subject to indemnification obligations therefore (the "Indemnifying Party") of such Indemnification Claims (a “"Notice of Claim"). A Notice of Claim Notice”shall be given with respect to each Indemnification Claim. The Notice of Claim shall set forth the amount (or a reasonable estimate) to of the Seller after Loss, damage or expense suffered, or which may be suffered, by the Indemnified Party becomes aware as a result of such Indemnification Claim and a brief description of the facts giving rise to such Indemnification Claim. The Indemnified Party shall furnish to the Indemnifying Party such information (in reasonable detail) as the Indemnified Party may have with respect to such Indemnification Claim (including copies of any factsummons, condition complaint or event other pleading which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the provisions same). If the claim or demand set forth in the Notice of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of is a claim or demand asserted by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “"Third Party Claim”"), the Buyer Indemnifying Party shall determine and conduct the defense, compromise have fifteen (15) days (or settlement of such Third Party Claim, and (a) all reasonable expenses relating shorter period if an answer or other response or filing with respect to the defense pleadings served by the third party is required prior to the 15th day) after the date of such receipt by the Indemnifying Party of the Notice of Claim (the "Notice Date") to notify the Indemnified Party in writing of the election by the Indemnifying Party to defend the Third Party Claim (whether or not incurred by on behalf of the Buyer) shall be borne and paid exclusively by Indemnified Party. If the Indemnifying Party elects to defend a Third Party Claim on behalf of the Indemnified Party; (ii) , the Seller Indemnified Party shall make available to the Buyer any documents Indemnifying Party and its agents and representatives all records and other materials in their its possession or control that may be necessary to which are reasonably required in the defense of such the Third Party Claim and the Indemnifying Party shall pay any expenses payable in connection with the defense of the Third Party Claim as they are incurred (whether incurred by the Indemnified Party or the Indemnifying Party). In no event may the Indemnifying Party settle or compromise any Third Party Claim without the Indemnified Party's consent, which shall not be unreasonably withheld or delayed. If the Indemnifying Party elects to defend a Third Party Claim, the Indemnified Party shall have the right to participate in the defense of the Third Party Claim, the Indemnifying Party retaining control of the defense, at the Indemnified Party's expense (and without the right to indemnification for such expense under this Agreement); provided, however, that, the reasonable fees and expenses of counsel retained by the Indemnified Party shall be at the expense of the Indemnifying Party if (a) the use of the counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest; (b) within ten (10) days after being advised by the Indemnifying Party of the identity of counsel to be retained to represent the Indemnified Party, the Indemnified Party shall have objected to the retention of such counsel for valid reasons (which shall be stated in a written notice to Indemnifying Party), and the Indemnified Party shall not have retained different counsel reasonably satisfactory to the Indemnified Party; or (c) the Buyer Indemnifying Party shall keep authorize the Seller informed Indemnified Party to retain separate counsel at the expense of all material developments the Indemnifying Party. If the Indemnifying Party does not elect to defend a Third Party Claim or does not defend a Third Party Claim in good faith, the Indemnified Party shall have the right, in addition to any other right or remedy it may have hereunder, at the sole and events relating exclusive expense of the Indemnifying Party, to defend such Third Party Claim. The Seller shall be entitledTo the extent that an Indemnified Party recovers on a Third Party Claim, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation the amount of such Third Party Claim or settlement negotiations recovery (after deduction of all costs and expenses incurred in connection with respect to such Third Party Claim. The Indemnifying Party ) shall be liable for any settlement of any Thirdreduce, dollar-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim thatfor-dollar, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred the indemnification obligation otherwise owing by the Indemnified Parties Party. Each Indemnified Party shall take commercially reasonable actions to mitigate Losses, including pursuing insurance claims and Third Party Claims, and shall reasonably consult and cooperate with each Indemnifying Party with a view towards mitigating Losses, in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” connection with claims for which an Indemnified Person seeks indemnification hereunder.
Appears in 1 contract
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to The following procedures shall be made by a Buyer Indemnified Party entitled applicable with respect to indemnification hereunderfor third party claims arising in connection with any provision of this Agreement, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) to the Seller after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages except for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g5.6 relating to Taxes:
(a) aboveEach indemnified party hereunder ("Indemnified Party") agrees that upon its obtaining knowledge of facts indicating that there may be a basis for a claim for indemnity under the provisions of this Agreement, the failure including receipt by it of notice of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim demand, assertion, claim, action or proceeding, judicial or otherwise, by a any third party (whether pursuant such third party actions being collectively referred to a lawsuit, other legal action or otherwise, a “Third Party hereinafter as the "Claim”"), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to any matter as to which it may be entitled to indemnity under the provisions of the Agreement, it will give prompt notice thereof in writing to the indemnifying party hereunder ("Indemnifying Party") together with a statement of such Third information respecting any of the foregoing as it shall then have.
(b) In the event of any Claim, the Indemnified Party and the Indemnifying Party shall consult with each other regarding whether to settle or to contest and defend such Claim. The Indemnifying Party shall be liable for is entitled at its cost and expense to contest and defend by appropriate legal proceeding any settlement Claim; provided, however, that if the Claim involves any customer or client of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there the Seller Business or otherwise is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless a nature that its handling or outcome may have an adverse affect on the ownership and operation of the outcome of Seller Business subsequent to the Closing (such claim, Claims are referred to as "Seller Business Claims" and all other Claims are referred to as "non-Seller Business Claims") then the Purchaser shall be deemed “Damages” hereunder.have the right to determine whether such Claim is contested (unless the Seller can demonstrate to the Purchaser's satisfaction that such
Appears in 1 contract
Samples: Asset Purchase Agreement (Applied Graphics Technologies Inc)
Procedure for Claims. If a claim for indemnification pursuant (a) Notwithstanding anything to Section 8.2 the contrary herein, no Indemnified Acquiror Party or Indemnified Seller Party (a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereundereach, the Buyer Indemnified Party claiming such indemnification (the an “Indemnified Party”) shall give be entitled to indemnification under this Article 10 (or to exercise its set-off rights, as applicable, pursuant to Section 10.7) unless it has delivered written notice (a “Claim Notice”) to Acquiror (in the Seller after event that indemnification is sought from Acquiror) or the Indemnified Party becomes aware of any factMember Representative (in the event that indemnification is sought from the Members), condition or event which may give rise to Damages for which indemnification as the case may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above(such party from whom indemnification is sought, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a an “Third Party ClaimIndemnitor”), prior to the Buyer shall determine expiration of the applicable survival period, if any, set forth in Section 10.6, setting forth (i) the subsection of Article 10 such claim is based upon and, if based upon an alleged breach of representation and conduct warranty, the defensespecific representation and warranty alleged to have been breached, compromise and, if based upon an alleged breach of covenant, the specific covenant or settlement agreement alleged to have been breached; (ii) a detailed description of the facts and circumstances giving rise to the indemnification obligation; (iii) the aggregate dollar amount of the Damages that have been incurred by such Parent Indemnitee or if unknown a good faith estimate of such Damages (the aggregate amount of such estimate being referred to as the “Claimed Amount” ); and (iv) in the event of a Third Party Claim, and (a) all reasonable expenses relating to the defense a copy of such Third Party Claim (whether or not incurred by if available) and a description of the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to basis for such Third Party Claim. The Seller If the matter to which a claim relates shall be entitlednot have been resolved as of the date of the Claim Notice, at its sole option and expense, to participate inthe Indemnified Party shall estimate in good faith the amount of the claim in the Claim Notice, but also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second Claim Notice (the “Liquidated Claim Notice”) within sixty (60) days after the matter giving rise to determine or conductthe claim becomes finally resolved and the amount of identifiable Damages can be determined, and the Liquidated Claim Notice shall specify the amount of the claim.
(b) Each Indemnitor to which a Claim Notice is given shall respond to any defense Indemnified Party that has given a Claim Notice (a “Claim Response”) within twenty (20) days (the “Response Period”) after the later of (i) the date that the Claim Notice is given, and investigation of such Third Party (ii) if a Claim or settlement negotiations Notice is first given with respect to an Unliquidated Claim, the date on which the Liquidated Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If the Indemnitor fails to give a Claim Response within the Response Period, such Third Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If the Indemnitor elects not to dispute all or any portion of a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the undisputed amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. If the Indemnitor provides its Claim Response within the Response Period, the Indemnified Party Claim. The Indemnifying and the Indemnitor Party shall be liable for any settlement then negotiate resolution of any Third-claims that the Indemnitor did not deem to have conceded in its Claim Response for a period of thirty (30) days after such Claim Response is provided. If the Indemnitor and the Indemnified Party Claim effected pursuant are unable to and resolve any such disputed claim(s) within such time period, the Indemnified Party may thereafter pursue any legal remedies available to the Indemnified Party against the Indemnitor with respect to the unresolved claim(s) in accordance with this ARTICLE 10.
(c) If an Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within five (5) Business Days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. If the Indemnified Party shall be an Indemnified Acquiror Party, it shall first seek payment of the Damages to which it is entitled under this ARTICLE 10 from the Indemnity Escrow Funds. In the event that (i) the Indemnified Party shall be an Indemnified Acquiror Party, (ii) the Indemnitor’s obligation to indemnify such Indemnified Party arises out of an Exempt Claim, (iii) the Indemnified Party shall have exhausted any available Indemnity Escrow Funds in respect of the Damages arising out of such Exempt Claim (Damages that are not satisfied after exhaustion of the Indemnity Escrow Funds are referred to as “Excess Damages”), then the Indemnified Acquiror Party may seek payment of such Excess Damages by [***]. If there shall be a dispute as to the amount or manner of indemnification under this ARTICLE 10, the Indemnified Party may pursue whatever legal remedies may be available to enforce its indemnification rights under this Agreement. If any Indemnitor fails to pay all or part of any indemnification obligation when such obligations are due either pursuant to the terms of Section 8.4 10.3(a) or pursuant to a final, non-appealable judgment of a court of competent jurisdiction, then such Indemnitor shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate, and the Prime Rate in effect on the first Business Day of each calendar quarter shall apply to the amount of the unpaid obligation during such calendar quarter. *** CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
(d) If the Indemnified Party is an Indemnified Acquiror Party and, pursuant to Section 10.3(c), such Indemnified Acquiror Party is entitled under this ARTICLE 10 to receive funds from the Indemnity Escrow Funds, then, within five (5) Business Days from the date on which such Indemnified Acquiror Party became entitled to such funds, Acquiror and the Member Representative shall provide joint written instructions to the Escrow Agent as to (i) the amount of funds, if any, to be disbursed from the Indemnity Escrow Funds and (ii) instructions as to the manner in which such funds shall be disbursed by the Escrow Agent.
(e) Notwithstanding any other provision of this ARTICLE 10, an Indemnified Acquiror Party shall be entitled to indemnification with respect to [***] only when the aggregate of all Damages to such Indemnified Party exceeds $[***] (the “Threshold Amount”) and then such Indemnified Party shall be entitled to indemnification for all of its Damages [***], including the Damages counted in achieving the Threshold Amount. After the Closing, the aggregate liability of all of the Members under this Agreement shall not exceed [***] (the “Cap”), except as contemplated below. Notwithstanding the foregoing, neither the Threshold Amount nor the Cap shall apply to any final judgment obligation to indemnify any Indemnified Acquiror Party, and nothing herein shall be deemed to limit or restrict in any manner any rights or remedies that an Indemnified Acquiror Party has or might have, at Law, in equity or otherwise (subject i) under Section 10.1(a)(i) for an inaccuracy or breach of a representation or warranty set forth in the Allocation Certificate, Section 4.2 (Capitalization), Section 4.4 (Authority and Enforceability), Section 5.1 (Organization, Standing; Authority and Binding Effect) and Section 5.3 (Ownership of Interests), (ii) under Section 10.1(a)(iii), or (iii) based on fraud or any willful misrepresentation, willful breach of warranty or willful failure to fulfill any agreement or covenant (the “Exempt Claims”); provided, that, [***].
(f) No information or knowledge acquired, or investigations conducted, by Acquiror or its representatives of the Company or otherwise shall in any way limit, or constitute a waiver of, or a defense to, any right of appeal)an Indemnified Acquiror Party to assert a claim for indemnification under this Agreement or the other Transaction Documents.
(g) All materiality qualifications contained in the Company’s or the Members’ representations and warranties in the Transaction Documents, including the term “Material Adverse Effect” shall be taken into account under this ARTICLE 10 solely for purposes of determining whether a breach or violation has occurred for which an indemnity obligation exists. If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by Without limiting the Indemnified Parties in defense of such claim, regardless generality of the outcome of foregoing, with respect to any representation or warranty that is breached, all such claim, qualifications shall be deemed “Damages” hereunderignored and not given effect for purposes of determining the amount of any Damages resulting from any such breach or violation and for the purpose of determining whether the Threshold Amount has been exceeded.
(h) [***].
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Valeant Pharmaceuticals International)
Procedure for Claims. (i) If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”"), subject to clause (ii) below, shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to 9.2, but in no event shall the provisions Claim Notice be effective if it is received after the expiration of Section 8.2(g) above, the Survival Period. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Claim Notice is received after the expiration of the Survival Period or the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) demonstrates actual material damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense (or, if the Person making such election is the Member Representative, at the cost, risk and expense of the Member or group of Members that is the Indemnifying Party), (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, as long as such proposed settlement or judgment involves only the payment of money damages; otherwise, the Indemnifying Party shall not compromise or settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Buyer shall determine Indemnified Party may, at its own cost and conduct expense, participate in the defenseinvestigation, compromise or settlement of such Third Party Claim, trial and (a) all reasonable expenses relating to the defense of such Third Third-Party Claim (whether Claim; provided that, if the named persons to a lawsuit or not incurred by the Buyer) shall be borne and paid exclusively by other legal action include both the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party; (ii) and the Seller shall make Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Buyer any documents and materials in their possession Indemnifying Party (or control that may be necessary to the defense Member Representative acting on behalf of such Third Indemnifying Party), the Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnified Party's cost, risk and expense, to participate inseparate counsel of its own choosing. If the Indemnifying Party (or, but not if the Indemnifying 45 Party is a Member or group of Members, the Member Representative) fails to determine assume the defense of such Third-Party Claim in accordance with this Section 9.2 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party (or, if the Indemnifying Party is a Member or conductgroup of Members, any defense the Member Representative)) have the right to undertake, at the Indemnifying Party's cost, risk and investigation expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; and shall be entitled to settle or compromise such Third Party Claim without the prior written consent of such Indemnified Party, as long as such compromise or settlement negotiations with respect to involves only the payment of money damages, otherwise provided that such Third Third-Party ClaimClaim shall not be compromised or settled without the written consent of the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative), which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) assumes the defense of the claim, the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 9.2 and for any final judgment (subject to any right of appeal). If there , and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.
(ii) Notwithstanding clause (i) above, in the event that any Indemnified Party is a Third Party Member Indemnified Party, any Claim thatNotice, election or other notification or correspondence required pursuant to such clause (i) shall only be valid if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred it is delivered by the Indemnified Parties Member Representative to Intelligroup. Each Member hereby irrevocably appoints the Member Representative as its agent and attorney-in-fact with respect to the matters set forth in defense this Article 9, and hereby irrevocably grants to the Member Representative the authority to administer Claims on behalf of such claimMember, regardless to exercise such other rights and powers as are set forth in this Agreement and to enter into, and to bind such Member with respect to, the settlement of the outcome of any such claim, Claim. Each Intelligroup Indemnified Party shall be deemed “Damages” hereunderentitled to rely on the agreements and representations of, and notices and other correspondence from, the Member Representative as such agent and attorney-in-fact in connection with any Claim by or against any Member pursuant to this Article 9. For purposes of this Section 9.2(b)(ii) the Member Representative shall be entitled to rely on the direction of (y) the Majority Holders, with respect to any Claims pursuant to Section 9.2(a)(i), and (z) the Indemnifying Party, with respect to any Claim pursuant to Section 9.2(a)(ii).
Appears in 1 contract
Samples: Merger Agreement (Intelligroup Inc)
Procedure for Claims. (a) If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made under Article 3 or Article 9 by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party claiming person making such indemnification claim (the “"Indemnified Party”") shall give written notice (a “"Claim Notice”") to the Seller person subject of the claim (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification the claim may be sought under Article 3 or Section 8.2.Subject to the provisions of Section 8.2(g9.2.
(b) above, the The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. , except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure.
(c) In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Buyer Indemnifying Party shall determine acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim or the Indemnifying Party wishes to pursue the claim itself in any event, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and conduct expense, (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld.
(d) In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.4, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim and shall make available to the Indemnifying Party at the Indemnifying Party's cost and expense, all such information, books, records, and employees of the Azimuth Companies as are reasonably required for the purpose of the defence; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall be entitled, at the Indemnifying Party's cost, risk and expense, to separate counsel of its own choosing.
(e) If the Indemnifying Party fails to assume the defense of such Third-Party Claim in accordance with this Section 9.4 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise and settlement of such Third-Party Claim.
(f) In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement of and shall use its best endeavours in undertaking such defence, compromise, or settlement not to prejudice the Indemnifying Party in the event that it transpires that the Indemnifying Party is required to indemnify the Indemnified Party in connection with such Third Party Claim, and .
(ag) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 9.4 and for any final judgment (subject to any right of appeal). , and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.
(h) If there the Claim is a Third Party Claim thatin relation to receivables, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred and Intelligroup has been indemnified by the Indemnified Parties Azimuth Shareholders in defense of respect thereof, Intelligroup will if requested assign such claim, regardless of receivables to the outcome of such claim, shall be deemed “Damages” hereunderAzimuth Shareholders.
Appears in 1 contract
Procedure for Claims. If A Person entitled to indemnification under this ARTICLE XI (an “Indemnified Party”) wishing to assert a claim for indemnification pursuant to Section 8.2 under this ARTICLE XI (a “Claim”) shall deliver to the Person from whom indemnification is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification sought (the “Indemnified Indemnifying Party”) shall give a written notice (a “Claim Notice”) that (i) states in reasonable detail the facts constituting the basis for the Damages claimed, (ii) states the amount (the “Claim Amount”) of any Damages claimed by the Indemnified Party, to the Seller after extent then known, (iii) states that the Indemnified Party becomes aware is entitled to indemnification under this ARTICLE XI, and (iv) includes a demand for payment in the amount of such Damages. The failure to give such Claim Notice will not relieve the Indemnifying Party of any factliability hereunder, condition except to the extent that the Indemnifying Party demonstrates that it was prejudiced thereby. Within 15 days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall (A) agree that the Indemnified Party is entitled to receive all of the Claim Amount, (B) agree that the Indemnified Party is entitled to receive part, but not all, of the Claim Amount (the “Agreed Amount”), or event which may give rise (C) contest that the Indemnified Party is entitled to Damages for which indemnification may be sought under Section 8.2.Subject receive any of the Claim Amount. If the Indemnifying Party in such response contests the payment of all or part of the Claim Amount, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not resolved within 30 days following the delivery by the Indemnifying Party of such response (the “Resolution Period”), the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder12.10.
Appears in 1 contract
Procedure for Claims. (i) If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”"), subject to clause (ii) below, shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 6.4. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Buyer Indemnifying Party shall determine acknowledge in writing to the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and conduct expense, (1) to take control of the defensedefense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such Third lawsuit or other legal action in accordance with this Section 6.4, the Indemnified Party Claimmay, at its own cost and (a) all reasonable expenses relating to expense, participate in the investigation, trial and defense of such Third Third-Party Claim (whether Claim; provided that, if the named persons to a lawsuit or not incurred other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by the Buyer) shall counsel that there may be borne and paid exclusively by one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party; (ii) , the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party's cost, risk and expense, to participate in, but not separate counsel of its own choosing. If the Indemnifying Party fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or settlement negotiations in accordance with respect this Section 6.4 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall, upon delivering notice to such Third effect to the Indemnifying Party, have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party ClaimClaim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 6.4 and for any final judgment (subject to any right of appeal). If there , and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.
(ii) Notwithstanding clause (i) above, in the event that the Indemnified Party is a Third Party TDT Indemnified Party, any Claim thatNotice, election or other notification or correspondence required pursuant to such clause (i) shall be valid if adversely determined would give rise it is delivered to a right of recovery for Damages hereunderKaplan Gottbetter & Levenson, then any amounts incurred by LLP (the Indemnified Parties "Stockholder Representaxxxx"). Xxxx Prxxxxxxx Stockholder hereby irrevocably appoints the Stockholder Representative as its agent and attorney-in-fact with respect to the matters set forth in defense this Section 6.4, and hereby irrevocably grants to the Stockholder Representative the authority to administer Claims on behalf of such claimStockholder, regardless to exercise such other rights and powers as are set forth in this Agreement and to enter into, and to bind such Stockholder with respect to, the settlement of the outcome of any such claim, Claim. Each Stronghold Indemnified Party shall be deemed “Damages” hereunderentitled to rely on the agreements and representations of, and notices and other correspondence from, the Stockholder Representative as such agent and attorney-in-fact in connection with any Claim by or against any Stockholder pursuant to this Section 6.4.
Appears in 1 contract
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “"Indemnified Party”"), subject to clause (ii) below, shall give written notice (a “"Claim Notice”") to the Seller indemnifying person (the "Indemnifying Party") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 6.4. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure. Failure by the Indemnifying Party to respond within 30 days of delivery of a Claim Notice shall constitute acceptance by the Indemnifying Party of responsibility to make payment pursuant thereto. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), if the Buyer Indemnifying Party shall determine acknowledge in writing to the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and conduct expense, (1) to take control of the defensedefense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such Third lawsuit or other legal action in accordance with this Section 6.4, the Indemnified Party Claimmay, at its own cost and (a) all reasonable expenses relating to expense, participate in the investigation, trial and defense of such Third Third-Party Claim (whether Claim; provided that, if the named persons to a lawsuit or not incurred other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by the Buyer) shall counsel that there may be borne and paid exclusively by one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party; (ii) , the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party"s cost, risk and expense, to participate in, but not separate counsel of its own choosing. If the Indemnifying Party fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or settlement negotiations in accordance with respect this Section 6.4 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall upon delivering notice to such Third effect to the Indemnifying Party Claimhave the right to undertake, at the Indemnifying Party"s cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party party Claim effected pursuant to and in accordance with this Section 8.4 6.4 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for indemnify and hold harmless each Indemnified Party from and against any and all Damages hereunder, then any amounts incurred by the Indemnified Parties in defense reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
Appears in 1 contract
Samples: Acquisition Agreement (D-Vine LTD)
Procedure for Claims. If A Person entitled to indemnification under this Article X (an “Indemnified Party”) wishing to assert a claim for indemnification pursuant under this Article X (including a claim to Section 8.2 which the Threshold would apply) (a “Claim”) shall deliver to the Person from whom indemnification is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification sought (the “Indemnified Indemnifying Party”) shall give a written notice (a “Claim Notice”) that (i) states in reasonable detail the facts constituting the basis for the Claim and the Damages claimed, (ii) states the amount (the “Claim Amount”) of any Damages claimed by the Indemnified Party, to the Seller after extent then known, (iii) states that the Indemnified Party becomes aware is entitled to indemnification under this Article X and set forth a reasonable explanation of the basis therefor, and (iv) includes a demand for payment in the amount of such Damages. Within 30 days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in which the Indemnifying Party shall (A) agree that the Indemnified Party is entitled to receive all of the Claim Amount, (B) agree that the Indemnified Party is entitled to receive part, but not all, of the Claim Amount (the “Agreed Amount”), or (C) contest that the Indemnified Party is entitled to receive any factof the Claim Amount. If the Indemnifying Party in such response contests the payment of all or part of the Claim Amount, condition or event which may give rise the Indemnifying Party and the Indemnified Party shall use good faith efforts to Damages for which indemnification may be sought under Section 8.2.Subject resolve such dispute. If such dispute is not resolved within 60 days following the delivery by the Indemnifying Party of such response (the “Resolution Period”), the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of competent jurisdiction in accordance with the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder11.10.
Appears in 1 contract
Procedure for Claims. If a (a) In the event that any claim or demand for indemnification pursuant which an Indemnifying Party would be liable to Section 8.2 (a “Claim”) an Indemnified Party hereunder is to be made asserted against an Indemnified Party by a Buyer third party, the Indemnified Party entitled to indemnification hereunder, shall promptly (but in no event later than ten (10) days alter notice thereof) notify the Buyer Indemnified Indemnifying Party claiming of such indemnification claim or demand (the “Indemnified Party”) shall give written notice (a “Claim Notice”), specifying the nature of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand). The Indemnifying Party shall have ten (10) days from the receipt of the Claim Notice (the “Notice Period”) to the Seller after notify the Indemnified Party becomes aware of (x) whether the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party hereunder for Losses with respect to such claim or demand and (y) if so, whether the Indemnifying Party desires to defend against such claim or demand, provided that the Indemnified Party is hereby authorized (but not obligated) prior to and during the Notice Period to file any factmotion, condition answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect the Indemnified Party’s interests. In the event which may give rise that the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party does acknowledge its obligation to Damages for which indemnification may be sought under Section 8.2.Subject indemnify hereunder and desires to defend the Indemnified Party against, such claim or demand then, except as hereinafter provided, the Indemnifying Party shall have the right to defend (with counsel reasonably satisfactory to the provisions of Section 8.2(gIndemnified Party) abovesuch claim or demand; provided that, (i) unless the Indemnified Party otherwise agrees in writing, the failure Indemnifying Party may not settle any matter (in whole or in part) unless such settlement (A) involves only money damages and (B) includes a complete and unconditional release of any the Indemnified Party and does not include any future obligations (other than standard confidentiality provisions regarding the terms of the settlement), (ii) the Indemnifying Party conducts the defense actively and diligently (in the reasonable opinion of the Indemnified Party), (iii) the Indemnified Party concludes, on the advice of counsel, that there is no conflict of interest between the Indemnified Party and the Indemnifying Party in the conduct of the defense and (iv) the Indemnifying Party provides the Indemnified Party with adequate reassurance (acceptable to give timely notice hereunder shall not affect rights the Indemnified Party in its sole discretion) that the Indemnifying Party has or will have financial resources necessary to defend against such claim or demand and fulfill its indemnification obligations hereunder. In the case of a Claim brought pursuant to Section 8.2 involving event that the assertion of a claim by a third party (whether pursuant to a lawsuitforegoing conditions are met, other legal action or otherwise, a “Third if the Indemnified Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, desires to participate in, but not control, any such defense or settlement, the Indemnified Party may do so at its sole cost and expense. If the Indemnifying Party elects not to, or cannot meet the above conditions in order to, defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the Indemnified Party may, without waiving any rights against the Indemnifying Party, settle or defend against any such claim in the Indemnified Party’s sole discretion and, if it is ultimately determined that the Indemnifying Party is responsible therefor under this Article VII, then the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any settlement or judgment and all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including fees and expenses of counsel, expert witness fees and expenses and other costs incurred by the Indemnified Party in defending the claim or demand.
(b) In the event the Indemnified Party should have a claim against the Indemnifying Party hereunder which does not involve a claim or demand being asserted against or sought to be collected by a third party, the Indemnified Party shall promptly send a Claim Notice with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within the Notice Period that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder.
(c) In the event of a third party claim, the party not controlling the defense shall have the right to receive copies of all pleadings, notices and communications with respect to such claim or demand to the extent that the receipt of such documents does not affect any privilege relating to the defending party, and the defending party shall provide the non-defending party the opportunity to participate in, but not determine or conduct, any defense and investigation of such Third Party Claim the claim or demand or settlement negotiations with respect related thereto, at its sole cost and expense.
(d) The Indemnified Party’s failure to such Third Party Claim. The give reasonably prompt notice to the Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim thatactual, if adversely determined would threatened or possible claim or demand which may give rise to a right of recovery for Damages hereunder, then indemnification hereunder shall not relieve the Indemnifying Party of any amounts incurred by liability which the Indemnifying Party may have to the Indemnified Parties in defense of Party unless the failure to give such claim, regardless of notice adversely and materially prejudiced the outcome of such claim, shall be deemed “Damages” hereunderIndemnifying Party.
Appears in 1 contract
Procedure for Claims. If a claim for A Party required to make an indemnification payment pursuant to Section 8.2 this Agreement (a “Claim”"INDEMNIFYING PARTY") is shall have no liability with respect to be made by a Buyer Indemnified any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification hereunderpayment ("INDEMNIFIED PARTY") gives notice to the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the Buyer nature and dollar amount of any Claim the Indemnified Party claiming may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim by a person, firm, corporation or government entity other than a party hereto or any affiliate of such indemnification party (the “"Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party”Party (a) shall give written notice (a “Claim Notice”) to the Seller after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement prompt notice of any Third-Party Claim effected pursuant Claim, (b) prior to and taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in accordance with this Section 8.4 and for any final judgment defending, settling, or compromising the Third-Party Claim, (subject c) shall not consent to any right settlement or compromise of appeal). If there is a Third the Third-Party Claim thatwithout the written consent of the Indemnifying Party (which consent, if adversely determined would give rise unless the Indemnifying Party has elected to a right of recovery for Damages hereunder, then any amounts incurred by assume the Indemnified Parties in exclusive defense of such claimClaim, regardless shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive de fense of such Third-Party Claim (including, except as provided in the last sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the written consent of the outcome of Indemnified Party if the relief provided is other than monetary damages and such claim, shall be deemed “Damages” hereunderrelief would materially adversely affect the Indemnified Party.
Appears in 1 contract
Samples: Merger Agreement (Rubenstein J Mark)
Procedure for Claims. If a claim for A Party required to make an indemnification payment pursuant to Section 8.2 this Agreement (a “Claim”"Indemnifying Party") is shall have no liability with respect to be made by a Buyer Indemnified any claim or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement unless the Party entitled to receive such indemnification hereunderpayment ("Indemnified Party") gives notice to the Indemnifying Party specifying (i) the covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the Buyer nature and dollar amount of any Claim the Indemnified Party claiming may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Claim by a person, firm, corporation or government entity other than a party hereto or any affiliate of such indemnification party (the “"Third-Party Claims"). With respect to Third-Party Claims, an Indemnified Party”Party (a) shall give written notice (a “Claim Notice”) to the Seller after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement prompt notice of any Third-Party Claim effected pursuant Claim, (b) prior to and taking any action with respect to such Third-Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in accordance with this Section 8.4 and for any final judgment defending, settling, or compromising the Third-Party Claim, (subject c) shall not consent to any right settlement or compromise of appeal). If there is a Third the Third-Party Claim thatwithout the written consent of the Indemnifying Party (which consent, if adversely determined would give rise unless the Indemnifying Party has elected to a right of recovery for Damages hereunder, then any amounts incurred by assume the Indemnified Parties in exclusive defense of such claimClaim, regardless shall not be unreasonably withheld or delayed) and (d) shall permit the Indemnifying Party, with the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld, if it so elects, to assume the exclusive defense of such Third-Party Claim (including, except as provided in the last sentence of this Section 8.3, the compromise or settlement thereof) at its own cost and expense. The Indemnifying Party will not compromise or settle any Third-Party Claim without the writte consent of the outcome of Indemnified Party if the relief provided is other than monetary damages and such claim, shall be deemed “Damages” hereunderrelief would materially adversely affect the Indemnified Party.
Appears in 1 contract
Samples: Merger Agreement (Global Telecommunication Solutions Inc)
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunderIf, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) to the Seller after the Indemnified Party becomes aware Effective Date, any legal proceeding shall be instituted or any Claim shall be asserted by any Person in respect of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject 8, the party seeking indemnification ("Claiming Party") shall promptly and (subject to Section 8(f) below) in no event more than fifteen (15) days after such knowledge cause written notice thereof to be given to the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to party against whom indemnification hereunderis sought ("Indemnifying Party"). In the case event of a such Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other or legal action or otherwise, a “Third Party Claim”)proceeding, the Buyer Indemnifying Party shall determine and conduct have the defenseright, compromise but not the obligation, to employ at its expense such counsel as is reasonably acceptable to the Claiming Party to defend any such Claim or settlement of such Third Party Claimlegal proceeding asserted against it, and (a) all reasonable expenses relating such Claiming Party shall have the right to participate in the defense of any such Third Claim or legal proceeding; and, so long as the Indemnifying Party is defending such Claim (whether or legal proceeding in good faith, the Claiming Party will be responsible for any of its own attorney's fees and expenses in connection with such participation, and the Claiming Party shall not incurred by settle such Claim or legal proceeding without the Buyer) shall be borne and paid exclusively by written consent of the Indemnifying Party; , which consent shall not unreasonably be withheld. If in the course of defending any Claim or legal proceeding, the Indemnifying Party presents a settlement ("Settlement") to the Claiming Party which the Claiming Party unreasonably refuses to accept, for whatever reason, the Indemnifying Party shall be relieved of its obligation to continue defending, at its expense, or paying expenses and fees associated with the continued defense of the Claim or legal proceeding on behalf of the Claiming Party. Upon resolution of the Claim or legal proceeding, the Indemnifying Party shall pay to the Claiming Party the lesser of (i) the Settlement amount stated above and (ii) the Seller amount for which the Claiming Party has been determined liable plus legal fees and expenses of the Claiming Party. Each party shall make available use reasonable efforts to keep the other party hereto fully informed as to the Buyer status of any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnifying Party shall be liable legal proceeding for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there which it is conducting a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereunderdefense.
Appears in 1 contract
Procedure for Claims. If (i) NOTICE OF CLAIM. Promptly, but in any event within thirty (30) days after obtaining knowledge of any claim or demand which may give rise to, or could reasonably give rise to, a claim for indemnification pursuant to Section 8.2 hereunder (a “any such claim an "Indemnification Claim”) is to be made by a Buyer Indemnified Party "), the party or parties entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification hereunder (the “"Indemnified Party”") shall give written notice to the party or parties subject to indemnification obligations therefore (the "Indemnifying Party") of such Indemnification Claim (a “"Notice of Claim"). A Notice of Claim Notice”) shall be given with respect to all Indemnification Claims then known; provided, however, that the failure to timely give a Notice of Claim to the Seller after Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to the Indemnified Party becomes aware hereunder to the extent that the Indemnifying Party is not prejudiced by such failure. Subject to Section 6(a) hereof, no Indemnified Party shall be entitled to give a Notice of Claim with respect to any factrepresentation and warranty eighteen (18) months from the Closing. The Notice of Claim shall set forth the amount (or a reasonable estimate) of the loss, condition damage or event expense suffered, or which may give be suffered, by the Indemnified Party as a result of such Indemnification Claim and a brief description of the facts giving rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Indemnification Claim. The Seller Indemnified Party shall be entitled, at its sole option and expense, furnish to participate in, but not to determine or conduct, any defense and investigation of the Indemnifying Party such Third information (in reasonable detail) as the Indemnified Party Claim or settlement negotiations may have with respect to such Third Party Claim. The Indemnifying Party shall be liable for any settlement Indemnification Claim (including copies of any Third-Party Claim effected pursuant to summons, complaint or other pleading which may have been served on it and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnified Parties in defense of such written claim, regardless of demand, invoice, billing or other document evidencing or asserting the outcome of such claim, shall be deemed “Damages” hereundersame).
Appears in 1 contract
Samples: Exchange of Securities Agreement (Newcourt Holdings Inc)
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Damages (a “"Claim”") is to be made by a Buyer Indemnified Party person entitled to indemnification hereunder, the Buyer Indemnified Party person claiming such indemnification (the “Indemnified Party”"INDEMNIFIED PARTY") shall give written notice (a “Claim Notice”"CLAIM NOTICE") to the Seller indemnifying person (the "INDEMNIFYING PARTY") as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 7.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that the Indemnifying Party demonstrates actual material damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third Party Claim”"THIRD-PARTY CLAIM"), (A) the Buyer Indemnified Party shall determine be entitled and, if it so elects, shall be obligated at the Indemnifying Party's cost, risk and conduct expense, (1) to take control of the defensedefense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnifying Party to handle and defend the same, and (B) the Indemnified Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnifying Party, such Third consent not to be unreasonably withheld. In the case of a Third-Party Claim, and (a) all reasonable expenses relating to the Indemnified Party may, in lieu of assuming the defense of such Third Third-Party Claim, elect, by delivering a Claim (whether or not incurred by Notice to the Buyer) shall be borne and paid exclusively by Indemnifying Party relating to such Third-Party Claim, to require the Indemnifying Party, at the Indemnifying Party's cost, risk and expense, (1) to take control of the defense and investigation of such Third-Party Claim, (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (3) if the Indemnifying Party so desires, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnified Party elects that the Indemnifying Party assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 7.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; (ii) provided that, if the Seller shall make named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Buyer any documents and materials in their possession or control that may be necessary to Indemnifying Party, the defense of such Third Indemnified Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option the Indemnifying Party's cost, risk and expense, to participate in, but not separate counsel of its own choosing. If the Indemnifying Party fails to determine or conduct, any assume the defense and investigation of such Third Third-Party Claim or in accordance with this Section 7.2 after receipt from the Indemnified Party of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall at any time (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement negotiations of such Third-Party Claim on behalf of and for the account of the Indemnifying Party in the manner and subject to the provisions set forth above with respect to the control of such Third defense by the Indemnified Party. In the event the Indemnifying Party Claimassumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 7.2 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for indemnify and hold harmless each Indemnified Party from and against any and all Damages hereunder, then any amounts incurred by the Indemnified Parties in defense reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
Appears in 1 contract
Samples: Purchase Agreement (Immulogic Pharmaceutical Corp /De)
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 (a “Claim”) is to be made by a Buyer Indemnified Party entitled to indemnification hereunder, the Buyer Indemnified Party claiming such indemnification (the “Indemnified Party”) shall give written notice (a “Claim Notice”) to the Seller promptly after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under Section 8.2.Subject to the provisions of Section 8.2(g) above, the 8.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunderhereunder except and only to the extent that, the Seller demonstrates actual material damage caused by such failure, and then only to the extent thereof. In the case of a Claim brought pursuant to Section Sections 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), the Buyer shall shall, without derogating from the rights of the Seller to defend itself and the rights thereof, determine and conduct the defense, compromise or settlement of such Third Party Claim, provided however, that Buyer shall not agree to any settlement or compromise of such Third Party Claim relating to the Seller or affecting the Seller or Seller's rights without the prior written consent of the Seller, which shall not be unreasonably delayed or withheld; and (a) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying PartySeller, to the extent the Seller is the indemnifying party in accordance with the provisions of this Article 8; (iib) the Seller shall make available to the Buyer any documents and materials in their the possession or control thereof that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, at its sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim, provided, however, if the named parties to the Third Party Claim include both the Seller and the Indemnified Party and, in the opinion of counsel to the Indemnified Party, representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for such Indemnified Party shall be paid by the Seller. The Indemnifying Party Seller shall be liable for any settlement of any Third-Party Claim effected affected pursuant to and in accordance with this Section 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the respective Indemnified Parties Party in the defense of such claimclaim conducted in good faith, regardless of the outcome of such claim, shall be deemed “Damages” hereunder.
Appears in 1 contract
Procedure for Claims. If a claim for indemnification pursuant to Section 8.2 Losses (a “"Claim”") is to be -------------------- ----- made by a Buyer Indemnified Party Person entitled to indemnification hereunder, the Buyer Indemnified Party Person claiming such indemnification (the “"Indemnified Party”") shall give written notice (a “"Claim ----------------- ----- Notice”") to the Seller indemnifying Person (the "Indemnifying Party") as soon as ------ ------------------ practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages Losses for which indemnification may be sought under this Section 8.2.Subject to the provisions of Section 8.2(g) above, the 10.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit, lawsuit or other legal action or otherwise, a “Third "Third-Party Claim”"), the Buyer shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and (aA) all reasonable expenses relating to the defense of such Third Party Claim (whether or not incurred by the Buyer) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, if it so ------------------ elects, at its sole option own cost, risk and expense, (1) to participate in, but not to determine or conduct, any take control of the defense and investigation of such Third Third-Party Claim and (2) to pursue the defense thereof by appropriate actions or proceedings, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement negotiations shall be made only with respect the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 10.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim. If the Indemnifying Party fails to assume the defense of such Third-Party Claim in accordance with this Section 10.2 within 30 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such Third effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party ClaimClaim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party assumes the defense of the claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.4 10.2 and for any final judgment (subject to any right of appeal). If there is a Third , and the Indemnifying Party Claim that, if adversely determined would give rise agrees to a right of recovery for Damages hereunder, then indemnify and hold harmless each Indemnified Party from and against any amounts incurred and all Losses by the Indemnified Parties in defense reason of such claim, regardless of the outcome of such claim, shall be deemed “Damages” hereundersettlement or judgment.
Appears in 1 contract
Samples: Recapitalization Agreement (Advanced Micro Devices Inc)
