Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows: (a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand. (b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim. (c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder. (d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim. (e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 8 contracts
Samples: Asset Purchase Agreement (Stratus Services Group Inc), Asset Purchase Agreement (Stratus Services Group Inc), Asset Purchase Agreement (Stratus Services Group Inc)
Procedure for Indemnification Claims. For purposes If at any time a claim shall be made or threatened, or an action or proceeding shall be commenced or threatened, against a party hereto (the "Aggrieved Party") which could result in liability of this Agreement, each of Seller and Buyer may be referred to as an “the other party (the "Indemnifying Party” in connection with their ") under its indemnification obligations herewithhereunder, the Aggrieved Party shall give to the Indemnifying Party prompt notice of such claim, action or proceeding. For purposes Such notice shall state the basis for the claim, action or proceeding and the amount thereof (to the extent such amount is determinable at the time when such notice is given) and shall permit the Indemnifying Party to assume the defense of this Agreementany such claim, Buyer Indemnitees action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such claim, action or proceeding within a reasonable time shall be deemed a waiver by the Indemnifying Party of its right to defend such claim, action or proceeding; provided, however, that the Indemnifying Party shall not be deemed to have waived its right to contest and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to defend against any claim of the Aggrieved Party for indemnification claims hereunder based upon or arising out of such claim, action or proceeding. If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered limited to taking all steps necessary in the defense or incurred any Losssettlement thereof and, such Indemnitee shall so notify to the extent the Indemnifying Party promptly in writing describing such Lossis liable for indemnification hereunder, to holding the amount thereofAggrieved Party harmless from and against any and all losses, if known, damages and the method liabilities caused by or arising out of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee settlement approved by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred award rendered in connection with such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Aggrieved Party shall be entitled to participate may participate, at its expense, in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless action or proceeding provided that the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim direct and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes control the defense of a claim pursuant to Section (c) abovesuch claim, the Indemnitee may compromise action or settle any claim against it at any timeproceeding; provided, however, that if in the Indemnitee reasonable opinion of the Aggrieved Party any such claim, action or proceeding involves an issue or matter which, if adversely determined, would have a materially adverse effect on the Aggrieved Party, then the Aggrieved Party shall not settle have the right to control the defense or compromise settlement of any claim without such claim, action or proceeding and its reasonable costs and expenses shall be included as a part of the indemnification obligation of the Indemnifying Party. The Indemnifying Party shall not, with respect to any such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any settlement, except with the prior written consent of the Indemnifying Aggrieved Party, which consent will shall not be unreasonably withheld; provided, however, in the case of any such judgment, award or settlement for money, it shall be a condition thereto that the Indemnifying Party shall acknowledge its obligation to indemnify the Aggrieved Party pursuant to this Article VI; and provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed any such judgment, award or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromiseinclude, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof thereof, the giving by release of the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claimby the third party claimant or plaintiff.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 5 contracts
Samples: Asset Purchase Agreement (Vision Twenty One Inc), Asset Purchase Agreement (Vision Twenty One Inc), Asset Purchase Agreement (Vision Twenty One Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it “Underlying Claim”) has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 11 of the Agreement, such Indemnitee parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to the parties liable for such indemnification (the “Indemnifying Parties”) of the right to indemnification (the “Indemnity Claim”); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 11.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties’ failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 11 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Global Tech Industries Group, Inc.), Stock Purchase Agreement (Lucys Cafe Inc), Stock Purchase Agreement (InterMetro Communications, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any LossIf, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference prior to the provisions Release Date, a party shall incur or receive notice of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect the existence of any Claim for which such Loss shall have occurred. In party claims indemnity hereunder (the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party"Indemnitee"), the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving give written notice thereof to the Indemnitee confirming other party (the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it"Indemnitor"). The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff furnish to the Indemnitee of a release from all liability Indemnitor in respect of reasonable detail such claim.
(c) With respect to a claim information as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise have with respect thereto (including in any case, copies of any summons, complaint or settle other pleading which may have been served on it and any claim against it at any timewritten claim, demand, invoice, billing or other document evidencing or asserting the same); provided, however, that no failure or delay by the Indemnitee in the performance of the foregoing prior to the Release Date shall reduce or otherwise affect the obligation of the Indemnitor to indemnify and hold the Indemnitee harmless, except to the extent that such failure or delay shall have actually impaired the Indemnitor's ability to defend against, settle or satisfy such liability, damage, loss, claim or demand, or increased the cost thereof.
(b) In the event of asserted liabilities to and claims and demands of third parties, including any action, suit or proceeding related thereto, with respect to matters set forth in Section 6.9 and 6.10 hereof, the Indemnitee shall not have the right to pay, compromise, settle or compromise otherwise dispose of any claim or conduct the defense or settlement of any action, suit or proceeding as the Indemnitee shall deem appropriate; provided, however, that if the Indemnitee shall pay any claim or settle any suit, action or proceeding without the prior written consent of the Indemnifying PartyIndemnitor, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment right of the Indemnitee it would to make any claim against the Indemnitor shall neither be materially harmed deemed conclusively established nor conclusively denied. The Indemnitor shall have the right to be represented by advisory counsel and accountants (at its own expense) in connection with any action, sit or otherwise prejudiced by not entering into a proposed settlement or compromise proceeding, and the Indemnifying Party withholds consent to such settlement or compromise, Indemnitor shall be kept reasonably informed by the Indemnitee may enter into of such settlement action, suit or compromise and such settlement proceeding at reasonable times at all stages thereof, whether or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third partyIndemnitor is so represented. The Indemnitee and Indemnitor agree to make available to each other, their counsel and accountants all information and documents reasonably available to them which relate to such action, suit or proceeding, and Indemnitee and Indemnitor agree to render to each other such assistance as they may not consent reasonably require of each other in order to entry ensure the proper and adequate defense of any judgment such action, suit or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimproceeding.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 3 contracts
Samples: Merger Agreement (Specialty Teleconstructors Inc), Merger Agreement (Carpenter Tommie R), Merger Agreement (Specialty Teleconstructors Inc)
Procedure for Indemnification Claims. For purposes of this AgreementThe following provisions shall apply to any Claim (as defined below) subject to indemnification, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” arising from or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claima suit, action or proceeding filed or instituted by a third party against any person not a party to this Agreement, shall be as followsof the Indemnified Parties for which indemnification by the Developer is applicable:
(ai) If an Indemnitee believes The applicable Indemnified Party shall, within thirty (30) days of being notified of such suit, action or proceeding against it, deliver written notice of a Claim to the Developer, and, to the extent that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Lossindemnification is required, the amount thereof, if known, Developer will assume investigation and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require Claim, including the Indemnitee to defend or respond to such claim employment of counsel approved in a manner different from that recommended writing by the Indemnifying Party, Indemnified Party (provided that such approval by the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Indemnified Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry ). The Developer shall be relieved of any judgment or enter into any settlement in respect obligation to indemnify an Indemnified Party as to a Claim, to the extent that the Indemnified Party fails to deliver timely notice of a claim which does not include as an unconditional term thereof Claim and the giving by the claimant or plaintiff to the Indemnitee of a release from all liability Developer thereby is prejudiced in respect of such claimany manner.
(cii) With respect The Indemnified Party will have the right, at its expense, to employ separate counsel and to participate in the investigation and defense of any such Claim. Additionally, if the Indemnified Party is advised in a claim as written opinion of counsel that is also addressed to the Developer that there may be legal defenses available to the Indemnified Party, which are adverse to or in conflict with those available to the Indemnifying Developer, or that the defenses of the Indemnified Party (i) does should be handled by separate counsel, the Developer shall not have the right to assume or cause the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control assumption of the defense of and contest such claim with counsel chosen by it and the Indemnifying Party Indemnified Party, however, the Developer shall be obligated to pay all responsible for the reasonable attorneys’ fees and expenses of counsel retained by the Indemnitee incurred Indemnified Party in connection with assuming its own defense, provided such counsel is approved in writing by the Developer (further provided that such approval by the Developer shall not be unreasonably withheld).
(iii) The Indemnified Party shall make available to the Developer or its respective representatives all records and other materials required by them and in the possession or under the control of the Indemnified Party, for the use of the Developer and its respective representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense. The Indemnifying An Indemnified Party shall be entitled to participate in will not settle any Claim without Developer’s prior written approval (further provided that such approval by the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee Developer shall not be required to defend unreasonably withheld). The Developer will not be liable for the settlement of any claim under this Section (c) unless Claim made by an Indemnified Party without the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by Developer’s prior written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any timeconsent; provided, however, that in the Indemnitee shall not settle or compromise any claim without event of a settlement entered into with such consent , except as expressly provided in Section 6.A. above, the prior written consent of the Indemnifying Party, which consent Developer will not be unreasonably withheld; provided, further, that if in indemnify and hold the reasonable judgment Indemnified Party harmless from and against any losses incurred by reason of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimjudgment.
(eiv) Both The Indemnified Party agrees to make a claim under any applicable insurance policy or self-insurance program which names the Indemnifying District and/or City as an insured or beneficiary, in order to provide insurance against the errors and omissions of the District Board or the other representatives, agents or employees of the District and any loss, claim, damage or liability that is covered by any commercial general liability insurance policy or other financial security instrument actually procured which names the District as an insured or beneficiary. In the event that the insurance available to the Indemnified Party is insufficient to reimburse the Indemnified Party for its actual losses, claims, damages or liabilities, then the Indemnified Party has a right to indemnification from the Developer, and only to the Indemnitee shall cooperate fully with one another extent that indemnification by the Developer will be secondary to, and in excess of, the insurance available for any Claim presented in connection with the defensematters for which indemnity may be claimed. The Developer shall not be liable under this Agreement to make any payment in connection with any Claim made against an Indemnified Party to the extent Indemnified Party has otherwise actually received payment (under any insurance policy, compromise self-insurance, or otherwise) of the amounts otherwise indemnifiable hereunder. Following payment of a Claim by the Developer, all offsets and insurance proceeds delivered to an Indemnified Party with respect to such a Claim, including payments made pursuant to the City’s self-insurance program, shall be paid to the Developer, and any rights to payment associated with such offsets and insurance proceeds, shall be assigned by the Indemnified Party to the Developer.
(v) As used in this Section 6 the term “Claim” shall include, except as otherwise provided above, (i) actual losses, damages, penalties and settlements, as imposed in any judgment, awards or settlement of any claimagreement; and (ii) all reasonable costs and expenses, including without limitation making available reasonable attorney’s fees, of investigating or defending any demands, claims, suits, actions, causes of action, and proceedings, whether or not ultimately determined to be valid existing solely out of the other all pertinent information and witnesses within its control at reasonable intervals during normal business hourslimited matters for which indemnity is provided in Section 6.A. above.
Appears in 2 contracts
Samples: Infrastructure Development and Acquisition Agreement, Infrastructure Development and Acquisition Agreement
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it “Underlying Claim”) has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 10 of the Agreement, such Indemnitee parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to the parties liable for such indemnification (the “Indemnifying Parties”) of the right to indemnification (the “Indemnity Claim”); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossmaterial prejudice to the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 10.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have fifteen (15) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties’ failure to defend provide such a written response within such fifteen (15) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 10 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Bonanza Goldfield Corp.), Asset Purchase Agreement (Lux Digital Pictures, Inc.)
Procedure for Indemnification Claims. For purposes Promptly after a Person receives notice of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect the commencement of an action for which an Indemnitee may the Person intends to seek recovery of a Loss indemnification under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party5.8, the Indemnitee shall Person will notify the Indemnifying Party promptly indemnifying party in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party the claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions commencement of the Indemnifying Party and action, suit or proceeding; provided, however, that failure to notify the Indemnitee in conducting indemnifying party will not relieve the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different indemnifying party from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation liability under this Section 5 5.8, except to indemnify the Indemnitee in respect of such claim, be entitled extent it has been materially prejudiced by the failure to assume and control such defense with counsel chosen by itgive notice. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent indemnifying party will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such any claim, but action, suit or proceeding as to which indemnification is being sought, and if the cost of such participation shall be at its own expense. Notwithstanding indemnifying party is the foregoingCompany, the Indemnitee shall indemnifying party may (but will not be required to) assume the defense against the claim, action, suit or proceeding with counsel satisfactory to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice it. Subject to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding following sentence, if the Company notifies an indemnified party that it shall owe no duties wishes to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes assume the defense of a claim pursuant to Section (c) aboveclaim, action, suit or proceeding, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent Company will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed liable for any legal or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving other expenses incurred by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another indemnified party in connection with the defensedefense against the claim, compromise action, suit or proceeding. If the Company notifies an indemnified party that it wishes to assume the defense of a claim, action, suit or proceeding, the indemnified party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party, except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel, or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict with respect to the dispute in question on any material issue between the position of the Company and the position of the indemnified party such that it would be inappropriate for one counsel to represent both parties. No indemnifying party will be liable to any indemnified party under this Agreement for any settlement by such indemnified party of any claimaction effected by such indemnified party without the indemnifying party’s prior written consent, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hourswhich shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Pet Airways Inc.), Securities Purchase Agreement (Daystar Technologies Inc)
Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an “Underlying Claim”) has arisen entitling them to seek indemnification under Section 9 of this Agreement, each of Seller and Buyer may be referred such parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to as an the parties liable for such indemnification (the “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes Parties”) of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the “Indemnity Claim”); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 9.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties’ failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay Losses incurred by the Indemnitee Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable Losses made pursuant to this Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 9.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
(e) Basket; Limitations on Indemnification; Calculation of Losses.
Appears in 2 contracts
Samples: Merger Agreement (Freeze Tag, Inc.), Merger Agreement (Solar3d, Inc.)
Procedure for Indemnification Claims. For purposes Promptly after a Person receives notice of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect the commencement of an action for which an Indemnitee may the Person intends to seek recovery of a Loss indemnification under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party5.8, the Indemnitee shall Person will notify the Indemnifying Party promptly indemnifying party in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party the claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions commencement of the Indemnifying Party and action, suit or proceeding; provided, however, that failure to notify the Indemnitee in conducting indemnifying party will not relieve the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different indemnifying party from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation liability under this Section 5 5.8, except to indemnify the Indemnitee in respect of such claim, be entitled extent it has been materially prejudiced by the failure to assume and control such defense with counsel chosen by itgive notice. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent indemnifying party will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such any claim, but action, suit or proceeding as to which indemnification is being sought, and if the cost of such participation shall be at its own expense. Notwithstanding indemnifying party is the foregoingCompany, the Indemnitee shall indemnifying party may (but will not be required to) assume the defense against the claim, action, suit or proceeding with counsel satisfactory to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice it. Subject to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding following sentence, if the Company notifies an indemnified party that it shall owe no duties wishes to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes assume the defense of a claim pursuant to Section (c) aboveclaim, action, suit or proceeding, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent Company will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed liable for any legal or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving other expenses incurred by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another indemnified party in connection with the defensedefense against the claim, compromise action, suit or proceeding. The indemnified party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party, except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel, or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict with respect to the dispute in question on any material issue between the position of the Company and the position of the indemnified party such that it would be inappropriate for one counsel to represent both parties. No indemnifying party will be liable to any indemnified party under this Agreement for any settlement by such indemnified party of any claimaction effected by such indemnified party without the indemnifying party’s prior written consent, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hourswhich shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Advaxis, Inc.), Preferred Stock Purchase Agreement (Advaxis, Inc.)
Procedure for Indemnification Claims. For purposes The respective indemnification obligations of this Agreement, each of Seller the parties pursuant to Sections 8(a) and Buyer may 8(b), above, shall be referred to as an “Indemnifying Party” in connection conditioned upon strict compliance with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, . If at any time a claim shall be as follows:
made, or an action or proceeding shall be commenced, against a party to this Agreement (athe "Aggrieved Party") If an Indemnitee believes that it has suffered or incurred any Losswhich could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations under this Agreement, such Indemnitee the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing such Lossnotice of that claim, action or proceeding within five (5) Business Days following receipt of service of any claim, action or proceeding by the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference Party (except that failure to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss give that notice shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify not excuse the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of except to the extent that it is materially prejudiced by that failure). The notice of such third party claim shall state the basis for the claim, action or demand.
proceeding and the amounts claimed, (bto the extent that amount is determined at the time when the notice is given) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of and shall permit the Indemnifying Party and the Indemnitee in conducting to assume the defense of any such claim claim, action or proceeding (iiincluding any action or proceeding resulting from any such claim) legitimate business considerations would require with counsel which is reasonably acceptable to the Indemnitee Aggrieved Party. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend the claim, action or respond proceeding within a reasonable time, but in no event more than fifteen (15) days after the notice shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume defend the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend action or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any timeproceeding; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used deemed to establish, have waived the existence or amount right to contest and defend against any claim of the liability Aggrieved Party for indemnification under this Agreement based upon or arising out of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any that claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hoursaction or proceeding.
Appears in 2 contracts
Samples: Affiliation and License Agreement (Playboy Enterprises Inc), Affiliation and License Agreement (Playboy Enterprises Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it “Underlying Claim”) has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 9 of the Agreement, such Indemnitee parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to the parties liable for such indemnification (the “Indemnifying Parties”) of the right to indemnification (the “Indemnity Claim”); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 9.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties’ failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 9 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lux Digital Pictures, Inc.), Stock Purchase Agreement (Competitive Companies Inc)
Procedure for Indemnification Claims. For purposes If at any time a claim shall be made or threatened, or an action or proceeding shall be commenced or threatened, against a party hereto (the "Aggrieved Party") which could result in liability of this Agreement, each of Seller and Buyer may be referred to as an “the other party (the "Indemnifying Party” in connection with their ") under its indemnification obligations herewithhereunder, the Aggrieved Party shall give to the Indemnifying Party prompt notice of such claim, action or proceeding. For purposes Such notice shall state the basis for the claim, action or proceeding and the amount thereof (to the extent such amount is determinable at the time when such notice is given) and shall permit the Indemnifying Party to assume the defense of this Agreementany such claim, Buyer Indemnitees action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such claim, action or proceeding within a reasonable time shall be deemed a waiver by the Indemnifying Party of its right to defend such claim, action or proceeding; provided, however, that the Indemnifying Party shall not be deemed to have waived its right to contest and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to defend against any claim of the Aggrieved Party for indemnification claims hereunder based upon or arising out of such claim, action or proceeding. If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered limited to taking all steps necessary in the defense or incurred any Losssettlement thereof and, such Indemnitee shall so notify to the extent the Indemnifying Party promptly in writing describing such Lossis liable for indemnification hereunder, to holding the amount thereofAggrieved Party harmless from and against any and all losses, if known, damages and the method liabilities caused by or arising out of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee settlement approved by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred award rendered in connection with such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Aggrieved Party shall be entitled to participate may participate, at its expense, in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless action or proceeding provided that the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim direct and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes control the defense of a claim pursuant to Section (c) abovesuch claim, the Indemnitee may compromise action or settle any claim against it at any timeproceeding; provided, however, that if in the Indemnitee reasonable opinion of the Aggrieved Party any such claim, action or proceeding involves an issue or matter which, if adversely determined, would have a materially adverse effect on the Aggrieved Party, then the Aggrieved Party shall not settle have the right to control the defense or compromise settlement of any claim without such claim, action or proceeding and its reasonable costs and expenses shall be included as a part of the indemnification obligation of the Indemnifying Party. The Indemnifying Party shall not, with respect to any such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any settlement, except with the prior written consent of the Indemnifying Aggrieved Party, which consent will shall not be unreasonably withheld; provided, however, in the case of any such judgment, award or settlement for money, it shall be a condition thereto that the Indemnifying Party shall acknowledge its obligation to indemnify the Aggrieved Party pursuant to this Article V; and provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed any such judgment, award or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromiseinclude, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof thereof, the giving by release of the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claimby the third party claimant or plaintiff.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Coast Dental Services Inc), Asset Purchase Agreement (Vision Twenty One Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “"Indemnifying Party” " in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “"Indemnitee” " or collectively as “"Indemnitees.” " The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s 's obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ ' fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Stratus Services Group Inc), Asset Purchase Agreement (Stratus Services Group Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it "Underlying Claim") has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 10 of the Agreement, such Indemnitee parties (the "Indemnified Parties") shall promptly send a notice ("Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of the right to indemnification (the "Indemnity Claim"); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 10.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does NOT result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties' failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay the Indemnitee damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 10 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 2 contracts
Samples: Plan of Reorganization and Stock Purchase Agreement (Environmental Service Professionals, Inc.), Plan of Reorganization and Stock Purchase Agreement (Glas-Aire Industries Group LTD)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) Buyer Indemnified Parties and Company Indemnified Parties are referred to collectively herein as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VIII are referred to herein as "Indemnifying Parties".
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 2 contracts
Samples: Share Exchange Agreement (Sunningdale, Inc.), Share Exchange Agreement (Sunningdale, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it “Underlying Claim”) has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 9 of the Agreement, such Indemnitee parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to the parties liable for such indemnification (the “Indemnifying Parties”) of the right to indemnification (the “Indemnity Claim”); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossmaterial prejudice to the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 9.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have fifteen (15) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties’ failure to defend provide such a written response within such fifteen (15) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 9 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Streamtrack, Inc.), Asset Purchase Agreement (Streamtrack, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it "Underlying Claim") has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 7 of the Agreement, such Indemnitee parties (the "Indemnified Parties") shall promptly send a notice ("Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of the right to indemnification (the "Indemnity Claim"); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 7.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does NOT result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties' failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 7 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Environmental Service Professionals, Inc.), Stock Purchase Agreement (Environmental Service Professionals, Inc.)
Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an “Underlying Claim”) has arisen entitling them to seek indemnification under Section 9 of this Agreement, each of Seller and Buyer may be referred such parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to as an the parties liable for such indemnification (the “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes Parties”) of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the “Indemnity Claim”); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 9.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties’ failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay Losses incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable Losses made pursuant to this Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 9.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
(e) Basket; Limitations on Indemnification; Calculation of Losses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Solar3d, Inc.), Asset Purchase Agreement (Solar3d, Inc.)
Procedure for Indemnification Claims. For purposes of (a) Whenever any parties become aware that a claim (an "Underlying Claim") has arisen entitling them to seek indemnification under this Agreement, each such parties (the "Indemnified Parties") shall promptly send a notice ("Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the "Indemnity Claim"); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 10.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and a reasonable estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does NOT result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties' failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 10 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Environmental Service Professionals, Inc.), Stock Purchase Agreement (Environmental Service Professionals, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes The parties agree that it has suffered if any claim is made or incurred any Losssuit or action is commenced against either party that would give rise to a right of indemnification for such party hereunder ("INDEMNIFIED PARTY") from the other party ("INDEMNIFYING PARTY"), such Indemnitee shall so notify the Indemnified Party will give notice to the Indemnifying Party as promptly in writing describing such Loss, as practicable after the amount thereof, if known, and receipt by the method Indemnified Party of computation notice or knowledge of such Lossclaim, all with reasonable particularity and containing a reference suit or action. Notice to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly under the preceding sentence shall be given no later than fifteen (15) days after receipt by the Indemnified Party of service of process in writing the event a suit or action has commenced or thirty (30) days under all other circumstances. The failure to give prompt notice shall not relieve an Indemnifying Party of its obligations to indemnify except to the extent the Indemnifying Party is prejudiced by such failure. The Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any such possible claim for indemnification, and each party hereunder will render to the other such assistance as soon as practicable but it may reasonably require of the other in order to insure prompt and adequate defense of any event within 30 days following receipt of notice of such third party suit, claim or demandproceeding based upon a state of facts which may give rise to a right of indemnification hereunder.
(b) Unless The Indemnifying Party shall have the right to defend, compromise and settle any third party suit, claim or proceeding in the name of the Indemnified Party to the extent that the Indemnifying Party may be liable to the Indemnified Party in connection therewith; provided, that any such settlement shall not contain any admission of fault or wrongdoing on the part of the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party WITHIN ten (10) days of having been notified pursuant to this Section 6.3 if the Indemnifying Party elects to assume the defense of any such claim, suit or proceeding and employ counsel, provided that the Indemnified Party does not object to such counsel in a reasonable judgment exercise of Indemnitee its discretion. The Indemnified Party shall have the right to employ its own counsel if the Indemnifying Party so elects to assume such defense, but the fees and expenses of such counsel shall be at the Indemnified Party's expense, unless (i) there is a conflict between the positions employment of such counsel shall have been authorized in writing by the Indemnifying Party; (ii) the Indemnifying Party and the Indemnitee in conducting shall not have employed counsel to take charge of the defense of such claim action after electing to assume the defense thereof, or (iiiii) legitimate business considerations would require the Indemnitee such Indemnified Party shall have reasonably concluded that there may be defenses available to defend or respond to such claim in a manner it which are different from that recommended or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party), in any of which events said reasonable fees and expenses shall be borne by the Indemnifying Party, .
(c) The Indemnified Party may at any time notify the Indemnifying Party shallof its intention to settle or compromise any claim, by giving notice thereof to suit or action against the Indemnitee confirming Indemnified Party (without the consent of the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee ) in respect of such claim, which indemnification payments may be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of sought from the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehereunder, provided that the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such settled or compromised claim, suit or action.
(cd) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled subrogated to participate in any claims or rights of the defense of such claim, but Indemnified Party as against any other persons or entities with respect to any amount paid by the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim Indemnifying Part under this Section (c) unless the Indemnifying 6.3. The Indemnified Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party cooperate with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; providedat the Indemnifying Party's expense, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced assertion by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of any such claimclaim against such other persons or entities.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 2 contracts
Samples: Stored Value Card Account Servicing Agreement (Morgan Beaumont Inc), Stored Value Card Account Servicing Agreement (Morgan Beaumont Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each The respective indemnification obligations of Seller and Buyer may pursuant to this Section 13.0 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by Seller and Buyer with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the "Aggrieved Party") which could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable to assume the defense of any such claim, action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such claim, action or proceeding within a reasonable time, but in no event more than fifteen days after notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such claim, action or proceeding; provided, however, that the Indemnifying Party shall not be deemed to have waived its right to contest and defend against any event within 30 days following receipt claim of notice the Aggrieved Party for indemnification hereunder based upon or arising out of such third party claim claim, action or demandproceeding.
(b) Unless in If the reasonable judgment Indemnifying Party assumes the defense of Indemnitee (i) there is a conflict between any such claim, action or proceeding, the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all Losses caused by or arising out of any settlement approved by the Indemnitee Indemnifying Party or any judgment or award rendered in conducting connection with such claim, action or proceeding. The Aggrieved Party may participate, at its expense, in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Aggrieved Party agrees to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of cooperate and make available to the Indemnifying Party or all books and records and such officers, employees and agents as are reasonably necessary and useful in response to legal process) following such assumption shall be at connection with the expense of the Indemniteedefense. Upon assuming such defense, the The Indemnifying Party shall have full right to enter into any compromise not, in the defense of such claim, action or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderproceeding, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(ec) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense.
(d) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, compromise records, officers, employees or settlement agents, as required by the terns of any claimparagraphs (b) and (c), respectively, of this Section 13.6 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including without limitation making available legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their The respective indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees the parties pursuant to Sections 11.2 and Seller Indemnitees may 11.4 shall be referred subject to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred proceeding shall be commenced or threatened, against an Indemnified Party which could result in liability of either party (the "INDEMNIFYING PARTY") under its indemnification obligations hereunder, the Indemnified Party shall give to the Indemnifying Party prompt notice of such claim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof (to the extent such amount is determinable at the time when such notice is given) and shall permit the Indemnifying Party to assume, at its own cost, the defense of any Losssuch claim, action or proceeding (including any action or proceeding resulting from any such Indemnitee claim) unless (a) in the reasonable opinion of counsel for the Indemnified Party, there is a conflict or potential conflict of interest between the Indemnified Party and such Indemnifying Party in such claim, action or proceeding, in which event the Indemnified Party shall so be entitled to direct the defense with respect to, but only with respect to, those issues as to which such conflict exists, or (b) the claim is brought by a Governmental Entity (other than a taxing authority) or a putative class action in which event the Indemnified Party shall be entitled to direct the defense of the claim with counsel reasonably acceptable to the Indemnifying Party. The failure to promptly notify the Indemnifying Party promptly in writing describing will not relieve the Indemnifying Party of any Liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Lossclaim is prejudiced by the Indemnified Party's failure to give notice within such time period. The Indemnifying Party shall have 30 days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the amount settlement or defense thereof, if known, and the method of computation of such Loss, all Indemnified Party shall cooperate with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto it in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demandconnection therewith.
(b) Unless in If the reasonable judgment Indemnifying Party assumes the defense of Indemnitee (i) there is a conflict between any such claim, action or proceeding, the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, subject to the limitation on the amount of indemnification set forth in this Section 11, to holding the Indemnified Party harmless from and against any and all Losses and expenses caused by or arising out of any settlement approved by the Indemnitee Party or any judgment or award rendered in conducting connection with such claim, action or proceeding. The Indemnified Party may participate, at its expense, in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Indemnified Party agrees to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of cooperate and make available to the Indemnifying Party or in response to legal process) following all books and records and such assumption shall be at the expense officers, employees and agents of the IndemniteeIndemnified Party as are reasonably necessary and useful in connection with the defense. Upon assuming such defense, the The Indemnifying Party shall have full right not, in the defense of such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any compromise or settlement which is dispositive of the matter involved; provided that settlement, except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without (i) in either event with the prior written consent of the Indemnitee, Indemnified Party (which consent will not be unreasonably withheld; and provided), further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim (ii) which does not include includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Indemnified Party of a release from all liability in respect of such claim, action or proceeding, and (iii) which does not require the Indemnified Party to conduct business prospectively in any particular materially adverse manner.
(c) If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Indemnified Party may defend against such claim, action or proceeding in such manner as it may deem appropriate, but shall not settle any such claim, action or proceeding without the Indemnifying Party's consent, which consent will not be unreasonably withheld. The Indemnifying Party agrees to cooperate and make available to the Indemnified Party all books and records and such officers, employees and agents of the Indemnifying Party as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall reimburse the Indemnified Party for any and all fees and expenses (including the entire expense of settling (if applicable) the claim, action or proceeding) incurred in such defense, subject to the limitations set forth herein, including the limitations set forth in Section 11.3 hereof.
(d) In the event an Indemnified Party or Indemnifying Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of paragraphs (b) and (c), respectively, of this Section 11.5 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including reasonable legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other similar expenses paid by the party providing such cooperation to its officers and employees in connection therewith.
(e) Both The Indemnifying Party shall be reimbursed by the Indemnified Party for any amounts expended by the Indemnifying Party (including legal fees and expenses) pursuant to this Section 11.5 in the Indemnitee event it is established or determined that the Indemnifying Party is not liable for indemnification pursuant to Section 11.2 hereof.
(f) Following the Closing, each party shall cooperate fully with one another in connection with promptly notify the defense, compromise or settlement other party of any claim, including without limitation making available action or proceeding, or of any other facts or circumstances, of which it becomes aware that could reasonably be expected to result in Losses (as defined herein) for which the other party would have indemnification obligations under this Section 11 (including, for this purpose, any such matter for which Seller would be required to indemnify Purchaser but for the application of the Deductible). The notified party may, but shall not be required to, at its cost and expense, take reasonable action in respect of any such matter in order to avoid or limit any such Losses, and, in the case of any claim, action or proceeding, shall have the right to assume the defense thereof in accordance with the procedures set forth in this Section 11.5; provided, however, that the limitations set forth in Section 11.3 shall apply to any actual Losses resulting therefrom. In addition, in the event Seller is notified by Purchaser of any such matter, upon Seller's acknowledgement that it either (i) is obligated to pay Losses in connection with such matter or (ii) would be so obligated but for the operation of the Deductible, Purchaser shall, at Seller's request, cause the Company to assign to Seller any claim that the Company may have against third parties (including, without limitation, any Prior Servicer) in respect of such matter and to cooperate in good faith with Seller in connection with any Action instituted by Seller against any such third party for purposes of holding such third party responsible for all pertinent information and witnesses within its control at reasonable intervals during normal business hoursor a portion of any such Loss.
Appears in 1 contract
Samples: Stock Purchase Agreement (Wilshire Financial Services Group Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) Buyer Indemnified Parties and the DNA Indemnified Parties are referred to collectively herein as "Indemnified Parties," and the Persons from whom indemnification is sought pursuant to this Article VII are referred to herein as "Indemnifying Parties."
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto, or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim, and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) Buyer Indemnified Parties and Company Indemnified Parties are referred to collectively herein as "INDEMNIFIED PARTIES," and the Persons from whom indemnification is sought pursuant to this Article 8 are referred to herein as "INDEMNIFYING PARTIES."
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing its responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefor.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; PROVIDED, HOWEVER, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
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Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an “Underlying Claim”) has arisen entitling them to seek indemnification under Section 7 of this Agreement, each of Seller and Buyer may be referred such parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to as an the parties liable for such indemnification (the “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes Parties”) of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the “Indemnity Claim”); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 73(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties’ failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay Losses incurred by the Indemnitee Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable Losses made pursuant to this Agreement will be treated as adjustments to the Consideration.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 7.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
(e) Basket; Limitations on Indemnification; Calculation of Losses.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes The respective indemnification obligations of this Agreement, each of Seller the Shareholders and the Buyer may pursuant to Sections 8.2 and 8.3 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by the Shareholders and the Buyer with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If at any time a claim shall be made, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced, such Indemnitee against a party to this Agreement (the "Aggrieved Party") which could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations under this Agreement, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing such Lossnotice of that claim, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference action or proceeding within 15 days following its commencement (except that failure to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss give that notice shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify not excuse the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of except to the extent that it is materially prejudiced by that failure). The notice of such third party claim shall state the basis for the claim, action or demand.
proceeding and the amount claimed, (bto the extent that amount is determinable at the time when the notice is given) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of and shall permit the Indemnifying Party and the Indemnitee in conducting to assume the defense of any such claim claim, action or proceeding (iiincluding any action or proceeding resulting from any such claim) legitimate business considerations would require with counsel which is reasonably acceptable to the Indemnitee Aggrieved Party. Failure by the Indemnifying Party to notify the Aggrieved Party of his, her, or its election to defend the claim, action or respond proceeding within a reasonable time, but in no event more than 15 days after the notice shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shallof his, by giving notice thereof her, or its right to defend the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionaction or proceeding; provided, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehowever, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived the right to contest and defend against any claim of the Aggrieved Party for indemnification under this Agreement based upon or arising out of that claim, action or proceeding;
(b) If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to that claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement of it and, provided the Indemnifying Party is held to be liable for indemnification under this Agreement, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with that claim, action or proceeding. The Aggrieved Party may participate, at his, her, or its expense, in the defense of that claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of that claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of the claim, action or proceeding, enter into any settlement without the prior written consent of the IndemniteeAggrieved Party, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.;
(c) With respect to a claim as to which If the Indemnifying Party (i) does not have assume or proceed with the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the vigorous defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of any such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoingaction or proceeding, the Indemnitee shall not be required to defend any claim under this Section (c) unless Aggrieved Party may, at the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentencerisk, it shall owe no duties to the Indemnifying Party with respect to such claim cost and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in defend against the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.action or proceeding in a
Appears in 1 contract
Procedure for Indemnification Claims. For purposes i. Whenever any parties become aware that a claim (an “Underlying Claim”) has arisen entitling them to seek indemnification under Section 7 of this Agreement, each of Seller and Buyer may be referred such parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to as an the parties liable for such indemnification (the “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes Parties”) of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the “Indemnity Claim”); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 7.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
ii. If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties’ failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to this Agreement will be treated as adjustments to the Purchase Price.
iii. In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If iv. The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Tech Industries Group, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) The WPIG Indemnified Parties and the Shareholder Indemnified Parties are referred to collectively herein as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VII are referred to herein as "Indemnifying Parties."
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that any a demand or claim for indemnification is made hereunder with respect to a matter the amount or demand in respect extent of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against not yet known or sought to be collected from such Indemnitee by a third partycertain, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions demand for indemnification shall so state, and, where practicable, shall include an estimate of the Indemnifying Party and amount of the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by itmatter. The Indemnitee shall be entitled failure of an Indemnified Party to participate therein after such assumption, but the costs give notice of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response any matter to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise relieve the Indemnifying Party of any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, liability that the Indemnifying Party may not consent have to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claimIndemnified Party.
(c) With respect Within 15 days after receipt of the notice referred to a claim in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnifying Indemnified Party (i) does to resolve any such matter that involves anyone not have the right to assume the defense under Section (b) a party hereto, or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by give written notice to the IndemniteeIndemnified Party of his intention to dispute or contest all or part of such responsibility. If the Indemnitee is not required Upon delivery of such notice of intention to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) abovecontest, the Indemnitee may compromise or settle parties shall negotiate in good faith to resolve as promptly as possible any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent dispute as to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as toresponsibility for, or otherwise be used the amount of, any such matter. Failure to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect respond to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party notice claiming indemnification shall be deemed a denial of a release from all liability in respect of such claimresponsibility therefore.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Share Exchange Agreement (WhistlePig Enterprises Inc)
Procedure for Indemnification Claims. For purposes The respective indemnification obligations of this Agreement, each of the Seller and Buyer may pursuant to Sections 6.2 and 6.3 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by the Seller and Buyer with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(aA) If at any time a claim shall be made, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced, such Indemnitee against a party to this Agreement (the Aggrieved Party) which could result in liability of the other party (the Indemnifying Party) under its indemnification obligations under this Agreement, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing such Lossnotice of that claim, action or proceeding within as soon as reasonably practical after the amount thereof, if known, and Aggrieved Party has received notice or the method of computation of such Loss, all with reasonable particularity and containing a reference claim (except that failure to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss give timely notice shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify not excuse the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of except to the extent that it is materially prejudiced by that failure). The notice of such third party claim shall state the basis for the claim, action or demand.
proceeding and the amount claimed, (bto the extent that amount is determinable at the time when the notice is given) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of and shall permit the Indemnifying Party and the Indemnitee in conducting to assume the defense of any such claim claim, action or proceeding (iiincluding any action or proceeding resulting from any such claim) legitimate business considerations would require with counsel which is reasonably acceptable to the Indemnitee Aggrieved Party. Failure by the Indemnifying Party to notify the Aggrieved Party of his, her or its election to defend the claim, action or respond proceeding within a reasonable time, but in no event more than 15 days after the notice shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shallof his, by giving notice thereof her, or its right to defend the claim, action or proceeding if and to the Indemnitee confirming extent that the Indemnifying Party’s obligation under this Section 5 to indemnify Aggrieved Party was materially prejudiced by the Indemnitee in respect of such claimdelay; provided, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionhowever, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived the right to contest and defend against any claim of the Aggrieved Party for indemnification under this Agreement based upon or arising out of that claim, action or proceeding.
(B) If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to that claim, action or proceeding shall be limited to taking all steps reasonably necessary in the defense or settlement of it and, provided the Indemnifying Party is held to be liable for indemnification under this Agreement, paying all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with that claim, action or proceeding. The Aggrieved Party may participate, at his, her, or its expense, in the defense of that claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of that claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of the claim, action or proceeding, enter into any settlement without the prior written consent of the IndemniteeAggrieved Party, which consent will shall not be unreasonably withheld; . If the Aggrieved Party and provided, further, the Indemnifying Party may not consent to entry of are both defendants in any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
action and either (ci) With respect to a claim as to which the Indemnifying Party agrees, or (iii) does not in the opinion of counsel for the Aggrieved Party, representation of both the Indemnifying Party and the Aggrieved Party by the same counsel is inappropriate under applicable standards of professional conduct because of actual or potential conflicting interests between them, then the Aggrieved Party shall have the right to assume select separate counsel, at the defense under Section (b) or (ii) shall not have exercised its right cost and expense of the Indemnified Party, to assume the defense, the Indemnitee shall assume such legal defense and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to otherwise participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section action.
(cC) unless If the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is does not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party assume or proceed with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) aboveany such claim, action or proceeding, the Indemnitee Aggrieved Party may, at the risk, cost and expense of the Indemnifying Party, defend against the claim, action or proceeding in a manner as he, she, or it may compromise deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Aggrieved Party shall not, in the defense of any such claim, action or settle proceeding, enter into any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim settlement without the prior written consent of the Indemnifying Party, which consent will shall not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Stock Purchase Agreement (Star Multi Care Services Inc)
Procedure for Indemnification Claims. For purposes of this Agreement(a) If any Purchaser Indemnified Party, each of Seller and Buyer may be referred to as an “Indemnifying on the one hand, or Company Indemnified Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” on the other hand (the "INDEMNIFIED PARTY"), has a claim or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon potential claim or arising out receives notice of any claim, potential claim or the commencement of any action or proceeding which could give rise to an obligation on the part of the Company or Purchaser, as the case may be, to provide indemnification (the "INDEMNIFYING PARTY") pursuant to Section 6.2 or 6.3, respectively, the Indemnified Party shall promptly give the Indemnifying Party written notice thereof (an "INDEMNIFICATION CLAIM"); PROVIDED, HOWEVER, that the failure to give such prompt notice shall not prevent any Indemnified Party from being indemnified hereunder for any Losses, except to the extent that the failure to so promptly notify the Indemnifying Party actually damages the Indemnifying Party and unless such claim is otherwise barred pursuant to the terms of Section 6.1.
(b) In the event of a claim, a potential claim or the commencement of any action or proceeding by any person not a third party which could give rise to this Agreementan obligation to provide indemnification pursuant to Sections 6.2 or 6.3, shall be as follows:
the Indemnified Party will give the Indemnifying Party prompt written notice thereof (a) If an Indemnitee believes the "THIRD PARTY INDEMNIFICATION CLAIM"); PROVIDED, HOWEVER, that it has suffered or incurred any Loss, such Indemnitee shall the failure of the Indemnified Party to so promptly notify the Indemnifying Party shall not prevent any Indemnified Party from being indemnified for any Losses, except to the extent that the failure to so promptly notify actually damages the Indemnifying Party and unless such claim is otherwise barred pursuant to the terms of Section 6.1.
(c) If the Indemnifying Party confirms in writing describing to the Indemnified Party within fifteen (15) days after receipt of the Third Party Indemnification Claim the Indemnifying Party's responsibility to indemnify and hold harmless the Indemnified Party therefor in accordance herewith and within such Loss15-day period demonstrates to the Indemnified Party's reasonable satisfaction that, as of such time, the Indemnifying Party has sufficient financial resources in order to indemnify for the full amount thereofof any potential liability in connection with such claim, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel, which counsel shall be reasonably satisfactory to the Indemnified Party, any such matter involving the asserted liability of the Indemnified Party. If the Indemnifying Party elects to compromise or defend any such asserted liability in accordance herewith, it shall within fifteen (15) days (or sooner, if knownthe nature of the asserted liability so requires) notify the Indemnified Party of its intent to do so, and the method of computation of such Loss, all with reasonable particularity and containing a reference Indemnified Party shall make available to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly or its representatives all records and other materials reasonably required for its use in writing as soon as practicable but contesting such Third Party Indemnification Claim and shall cooperate fully with the Indemnifying Party, in the compromise of, or defense against, any event within 30 days following receipt such asserted liability, all at the expense of notice the Company; PROVIDED THAT (i) the Indemnified Party may, if it so desires, employ counsel at its own expense to assist in the handling of any such third party claim, (ii) the Indemnifying Party shall keep the Indemnified Party advised of all material events with respect to any such third party claim, (iii) the Indemnifying Party shall obtain the prior written approval of the Purchaser (if the Indemnified Party is the Company) or the Company (if the Indemnified Party is the Purchaser) (which approval may not be unreasonably withheld), before ceasing to defend against such third party claim or entering into any settlement, adjustment or compromise of such third party claim involving injunctive or demand.
similar equitable relief being asserted against any Indemnified Party or any of its Affiliates (bor which could result in Losses to any Indemnified Party which are within the Basket Amount) Unless in and (iv) no Indemnifying Party will, without the reasonable judgment prior written consent of Indemnitee Purchaser (i) there is a conflict between the positions of if the Indemnifying Party and is the Indemnitee in conducting Company) or the defense of such claim or Company (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, if the Indemnifying Party shallis Purchaser), by giving notice thereof settle or compromise or consent to the Indemnitee confirming entry of any judgment in any pending or threatened demand, claim, action or cause of action, suit or proceeding in respect of which indemnification may be sought hereunder, unless such settlement, compromise or consent includes an unconditional release of all Purchaser Indemnified Parties (if the Indemnifying Party’s obligation under this Section 5 to indemnify Party is the Indemnitee in respect Company) or all Company Indemnified Parties (if the Indemnifying Party is Purchaser) from all liability arising out of such claim, be entitled action, suit or proceeding. Notwithstanding anything contained herein to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereundercontrary, the Indemnifying Party shall not settle be entitled to have, and the Indemnified Party shall have, sole control over the defense, settlement, adjustment or compromise of any third party non-monetary claim that seeks an order, injunction or other equitable relief against any Indemnified Party or its Affiliates which, if successful, could materially interfere with the business, assets, liabilities, obligations, financial condition or results of operations of the Indemnified Party or any of its Affiliates. If the Indemnifying Party elects not to compromise or defend against the asserted liability, or fails to notify the Indemnified Party of its election as herein provided, the Indemnified Party may, at the Indemnifying Party's expense, pay, compromise or defend against such asserted liability.
(d) Notwithstanding Section 6.4(c) above, as between the Purchaser Indemnified Parties, on the one hand, and the Company, on the other hand, Purchaser shall have the right to control the conduct of any audit or administrative or court proceeding relating to Taxes of any Purchaser Indemnified Party. Purchaser shall keep the Company informed on a current basis of the progress of any such audit or proceeding the outcome of which could require the Company to indemnify any Purchaser Indemnified Party (including, without limitation, providing upon request copies of correspondence received from the IRS or any taxing authority, domestic or foreign) and shall permit the Company to participate at its own expense in the preparation of any briefs, memoranda or other similar materials to be submitted in connection with such audit or proceeding. Purchaser shall not agree to compromise or settle any such audit or proceeding without the prior written consent of the IndemniteeCompany, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claimdelayed.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each The respective indemnification obligations of Seller and Buyer may pursuant to Sections 11.2 and 11.4 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by Seller and Buyer with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(ai) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the "Aggrieved Party") which could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify extent
(ii) If the Indemnifying Party promptly in writing as soon as practicable but in assumes the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demand.
(b) Unless in proceeding, the reasonable judgment of Indemnitee (i) there is a conflict between the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder and subject to the Indemnitee limitation on the amount of indemnification set forth in conducting this Section 11, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with such claim, action or proceeding. The Aggrieved Party may participate, at its expense, in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Aggrieved Party agrees to participate therein after cooperate and make available to the Indemnified Party all books and records and such assumptionofficers, but the costs of such participation (other than the costs of providing witnesses or documents at the request employees and agents of the Indemnifying Aggrieved Party or as are reasonably necessary and useful in response to legal process) following such assumption shall be at connection with the expense of the Indemniteedefense. Upon assuming such defense, the The Indemnifying Party shall have full right to enter into any compromise not, in the defense of such claim, action or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderproceeding, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(eiii) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents of the Indemnifying Party as are reasonably necessary and useful in connection with the defense.
(iv) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, compromise records, officers, employees or settlement agents, as required by the terms of any claimparagraphs (ii) and (iii), respectively, of this Section 11.6 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including without limitation making available legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Samples: Stock Purchase Agreement (Baldwin Technology Co Inc)
Procedure for Indemnification Claims. For purposes of this AgreementIn the event that a claim shall be made or threatened, each of Seller and Buyer may or an action or proceeding shall be referred to as commenced or threatened, against an “Indemnifying Indemnified Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any which claim, action or proceeding could result in liability of the Partnership the indemnification obligations hereunder, the Indemnified Party shall give prompt notice to the Partnership and the Partnership shall have the right to take over the defense or settlement of such claim, action or proceeding at its own expense by giving prompt written notice to the Indemnified Party; PROVIDED, however, that the omission so to notify the Partnership will not relieve the Partnership from any person liability to the extent the Partnership is not materially prejudiced as a party to this Agreementproximate result of such failure; PROVIDED, shall be as follows:
FURTHER, that (a) If an Indemnitee believes the Indemnified Party shall at all times have the right, at its option and expense, to participate fully therein; PROVIDED that it has suffered or incurred any Loss, such Indemnitee the Partnership shall so notify be responsible for the Indemnifying legal fees and expenses of the Indemnified Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) the employment of such counsel by the Indemnified Party has been authorized by the Partnership, (ii) the Indemnified Party shall have reasonably concluded that there is may be a conflict of interest between the positions of the Indemnifying Party Partnership and the Indemnitee Indemnified Party in conducting the conduct of the defense of such claim or action (ii) legitimate business considerations would require in which case the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee Partnership shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to direct the defense of such action on behalf of the Indemnified Party) or counsel for the Partnership shall have declined to represent the Indemnified Party in light of a potential conflict of interest, or (iii) the Partnership shall not in fact have employed counsel reasonably satisfactory to the Indemnified Party to assume the defense under Section of such action, and (b) if the Partnership did not give such notice and did not proceed diligently to defend the claim, action or (ii) shall not have exercised its right to assume proceeding within 15 days after receipt of such notice of the defenseclaim, action or proceeding, the Indemnitee Indemnified Party shall assume and control have the right, but not the obligation, to undertake the defense of any such claim, action or proceeding for the account of and contest such claim with counsel chosen by it at the risk of the Partnership and the Indemnifying Party Partnership shall be obligated bound by any defense or settlement that the Indemnified Party may make as to pay all such claim, action or proceeding. The parties shall cooperate in defending any such claim, action or proceeding, and the defending party shall have reasonable attorneys’ fees access to the books and expenses records and personnel in the possession or control of the Indemnitee incurred in connection with such other party that are pertinent to the defense. The Indemnifying Party Partnership shall be entitled to participate not, in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoingaction or proceeding, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice consent to the Indemnitee. If the Indemnitee is not required to defend entry of any claim under the immediately preceding sentencejudgment or award, it shall owe no duties to the Indemnifying Party or enter into any settlement, except in either event with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Indemnified Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee parties agree that any Indemnified Party may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof join the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability Partnership in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available action or proceeding as to which any right of indemnity granted to such Indemnified Party pursuant to this Agreement would or might apply, for the other all pertinent information and witnesses within its control at reasonable intervals during normal business hourspurpose of enforcing such right of indemnity.
Appears in 1 contract
Samples: Agreement as to Certain Undertakings (Tenaska Georgia Partners Lp)
Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an "Underlying Claim") has arisen entitling them to seek indemnification under Section 8 of this Agreement, each such parties (the "Indemnified Parties") shall promptly send a notice ("Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the "Indemnity Claim"); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 8.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties' failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay Losses incurred by the Indemnitee Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties..
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 8.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes The respective indemnification ------------------------------------ obligations of this Agreement, each of Seller ETS and Buyer may SearchHelp pursuant to Sections 8.2 and 8.3 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by ETS and SearchHelp with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the "Aggrieved Party") which could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable to assume the defense of any such claim, action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such claim, action or proceeding within a reasonable time, but in no event more than fifteen days after notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such claim, action or proceeding; provided, however, that the Indemnifying Party shall not be deemed to have waived its right to contest and defend against any event within 30 days following receipt claim of notice the Aggrieved Party for indemnification hereunder based upon or arising out of such third party claim claim, action or demandproceeding.
(b) Unless in If the reasonable judgment Indemnifying Party assumes the defense of Indemnitee (i) there is a conflict between any such claim, action or proceeding, the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnitee Indemnifying Party or any judgment or award rendered in conducting connection with such claim, action or proceeding. The Aggrieved Party may participate, at its expense, in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Aggrieved Party agrees to participate therein after cooperate and make available to the Indemnified Party all books and records and such assumptionofficers, but employees and agents as are reasonably necessary and useful in connection with the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemniteedefense. Upon assuming such defense, the The Indemnifying Party shall have full right to enter into any compromise not, in the defense of such claim, action or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderproceeding, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(ec) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. If the Indemnifying Party, compromise within ten days after notice shall have been given to it by the Aggrieved Party of the latter's intention to effect a settlement of any such claim, action or proceeding, which notice shall describe with particularity the terms of any such proposed settlement, shall not deposit with an escrowee mutually satisfactory to the Aggrieved Party and the Indemnifying Party a sum equivalent to the total amount demanded in such claim, action or proceeding or deliver to the Aggrieved Party a surety bond or an irrevocable letter of credit for such sum in form and substance reasonably satisfactory to the Aggrieved Party, then the Aggrieved Party may settle such claim, action or proceeding on the terms detailed in its notice to the Indemnifying Party, and the Indemnifying Party shall be deemed to have agreed to the terms of such settlement and shall not thereafter in any proceeding by the Aggrieved Party for indemnification question the propriety of such settlement. If the Indemnifying Party makes an escrow deposit or delivers a surety bond or letter of credit as aforesaid and thereafter the Aggrieved Party settles such claim, action or proceeding, then in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, the Aggrieved Party shall have the burden of proving the amount of such liability of the Indemnifying Party, and the amount of the payments made in settlement of any claim, including without limitation making available action or proceeding shall not be determinative as between the Aggrieved Party and the Indemnifying Party of the amount of such indemnification liability, except that the amount of the settlement payments shall constitute the maximum amount of the indemnification liability of the Indemnifying Party. Such escrow deposit, surety bond or letter of credit shall by their respective terms be payable to the Aggrieved Party in an amount determined in accordance with the last sentence of this paragraph (C) and in the event the Indemnifying Party is held liable for indemnification hereunder. If the Indemnifying Party neither makes an escrow deposit nor delivers a surety bond or letter of credit as aforesaid, so that no settlement of such claim, action or proceeding is effected, in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, such liability shall be for the amount of any judgment or award rendered with respect to such claim or in such action or proceeding and of all expenses, legal and otherwise, incurred by the Aggrieved Party in the defense against such claim, action or proceeding.
(d) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of paragraphs (B) and (C), respectively, of this Section 8.4 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
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Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller Seller, Xx. Xxxxx and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
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Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Any Indemnified Party promptly in writing describing such Loss, the amount thereof, if known, and the method asserting a right of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of indemnification provided for under this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee Third Party Claim shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event of the Third Party Claim within 30 ten business days following after receipt by such Indemnified Party of written notice of the Third Party Claim. As part of such third party claim or demand.
(b) Unless in notice, the reasonable judgment of Indemnitee (i) there is a conflict between the positions of Indemnified Party shall furnish the Indemnifying Party and with copies of any pleadings, correspondence or other documents relating thereto that are in the Indemnitee in conducting Indemnified Party's possession. The Indemnified Party's failure to notify the defense Indemnifying Party of any such claim or (ii) legitimate business considerations would require matter within the Indemnitee to defend or respond to such claim in a manner different from that recommended by time frame specified above shall not release the Indemnifying Party, in whole or in part, from its obligations under this Section 7 except to the extent that the Indemnifying Party's ability to defend against such claim is actually prejudiced thereby. The Indemnifying Party agrees (and, at such time as the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation acknowledges its liability under this Section 5 7 with respect to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Third Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defenseClaim, the Indemnifying Party shall have full right the sole and exclusive right) to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderdefend against, the Indemnifying Party shall not settle or compromise any claim without such Third Party Claim at the prior written consent expense of such Indemnifying Party; provided, however, such acknowledgement shall not effect or be deemed a waiver of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying limitation on liability set forth in Section 7.2. The Indemnified Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not shall have the right to assume (but not the defense under Section (bobligation) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claimclaim through counsel selected by it, but the cost of such participation which counsel shall be at its own the Indemnified Party's expense to the extent that the Indemnifying Party has assumed the defense of such claim unless counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party due to an actual or potential conflict of interest, in which case such counsel shall be at the Indemnifying Party's expense. Notwithstanding The Indemnified Party shall cooperate with the foregoingIndemnifying Party and provide such assistance at the Indemnifying Party's expense as the Indemnifying Party may reasonably request in connection with the defense of such claim, including but not limited to providing the Indemnitee shall Indemnifying Party access to and use of all relevant corporate records and making available its officers and employees for depositions, other pre-trial discovery and as witnesses at trial, if required. If the Indemnified Party asserts a right of indemnification under this Agreement for a Third Party Claim and the Indemnifying Party has not be required to defend any claim yet acknowledged its liability under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party 7 with respect to such claim and may defendThird Party Claim, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both then the Indemnifying Party and the Indemnitee Indemnified Party shall cooperate fully with one another in connection with defending against such Third Party Claim at the defenseIndemnifying Party's expense, and neither party shall have the right, without the other's consent, to settle or compromise or settlement any such Third Party Claim.
(b) In the event of any claimclaim for indemnification hereunder that is not a Third Party Claim, including without limitation making available the Indemnified Party shall give reasonable notice thereof to the Indemnifying Party and shall afford the Indemnifying Party access to all relevant corporate records and other all pertinent information in its possession relating thereto.
(c) If any party becomes obligated to indemnify another party with respect to any claim for indemnification hereunder and witnesses the amount of liability with respect thereto shall have been finally determined, the Indemnifying Party shall pay such amount to the Indemnified Party in immediately available funds within its control at reasonable intervals during normal business hoursten days following written demand by the Indemnified Party.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each The respective indemnification obligations of Seller and Buyer may Purchaser pursuant to Section 19 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by Seller and Purchaser with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, .
(i) If at any time a claim shall be as follows:
made or threatened, or an action or proceeding shall be commenced or threatened, against a party hereto (athe "Aggrieved Party") If an Indemnitee believes that it has suffered or incurred any Losswhich could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, such Indemnitee the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable but in to assume the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demand.
proceeding (b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party and to notify the Indemnitee in conducting the defense Aggrieved Party of such claim or (ii) legitimate business considerations would require the Indemnitee its election to defend any such claim, action or respond proceeding within a reasonable time, but in no event more than fifteen days after notice thereof shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shall, by giving notice thereof of its right to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of defend such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionaction or proceeding; provided, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehowever, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived its right to contest and defend against any claim without the prior written consent of the IndemniteeAggrieved Party for indemnification hereunder based upon or arising out of such claim, which consent will not be unreasonably withheld; and provided, further, action or proceeding.
(ii) If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with such claim, action or proceeding. The Aggrieved Party may not participate, at its expense, in the defense of such claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnified Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim, action or 36 42 proceeding, consent to the entry of any judgment or award, or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding, except in either event with the prior consent of the Aggrieved Party.
(eiii) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense.
(iv) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, compromise records, officers, employees or settlement agents, as required by the terms of any claimsubparagraphs (ii) and (iii), respectively, of this Section 19.D., the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses including without limitation making available legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alternative Living Services Inc)
Procedure for Indemnification Claims. For purposes of this AgreementAll claims for indemnification by Purchaser or Seller (as the case may be, each of Seller and Buyer the “Indemnified Party”) from the other party (as the case may be referred to as an be, the “Indemnifying Party” ”) must be asserted and resolved as set forth in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees§7.5.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify Third Party Claim is commenced for which the Indemnifying Party promptly in writing describing such Losswould be liable for Damages to the Indemnified Party, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing Indemnified Party must deliver written notice (a reference “Claim Notice”) to the provisions Indemnifying Party within five days after the Indemnified Party’s receipt of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect a written notice of which such Loss shall have occurred. In the event that any claim or demand that constitutes a Third Party Claim and with reasonable promptness with respect to any other Third Party Claim. The Indemnified Party’s failure or delay in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, giving the Indemnitee shall notify Claim Notice will relieve the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim its obligations only to the extent that the failure or demanddelay prejudices the Indemnifying Party.
(b) Unless in The Indemnifying Party must give written notice to the reasonable judgment Indemnified Party within 20 days after the delivery of Indemnitee the Claim Notice stating:
(i) there is a conflict between whether it disputes its liability with respect to the positions of the Indemnifying Third Party Claim, and
(ii) whether it, at its sole cost and the Indemnitee in conducting expense, desires to assume the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Third Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claimClaim.
(c) With respect The Indemnified Party may take any action it deems to a claim as be necessary or desirable to which preserve its rights before it receives the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claimParty’s response, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall Indemnified Party will not be required settle or proceed to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party final judgment with respect to such claim and may defend, fail to defend the Third Party Claim before the expiration of the 20-day response period or settle such claim without affecting its right to indemnity hereunderearlier receipt of the Indemnified Party’s written consent.
(d) If the Indemnitee assumes Indemnifying Party accepts liability for the Third Party Claim, it may direct through counsel of its own choosing the defense or settlement of a claim pursuant to Section (c) abovethe Third Party Claim, except that the Indemnitee Indemnifying Party may compromise or not settle any claim against it at any time; provided, however, that matter without obtaining the Indemnitee shall not settle or compromise any claim without the Indemnified Party’s prior written consent if the settlement:
(i) provides for any remedy other than the payment of money damages, or
(ii) does not provide for a full release of the Indemnifying Indemnified Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both If the Indemnifying Party accepts liability for the Third Party Claim and elects to assume the Indemnitee shall cooperate fully with one another defense of the Third Party Claim, the Indemnified Party may participate in connection with the defense at its own expense.
(f) If the Indemnifying Party rejects liability for the Third Party Claim, or accepts liability for the Third Party Claim but then fails to mount a defense or, after commencing or undertaking the defense, compromise fails to prosecute or withdraws from the defense other than as a result of a settlement, the Indemnified Party will have the right to direct, through counsel of its own choosing the defense or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hoursThird Party Claim.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an "Underlying Claim") has arisen entitling them to seek indemnification under Section 8 of this Agreement, each such parties (the "Indemnified Parties") shall promptly send a notice ("Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the "Indemnity Claim"); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 8.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties' failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay Losses incurred by the Indemnitee Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable Losses made pursuant to this Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 8.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
(e) Basket; Limitations on Indemnification; Calculation of Losses.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes (a) Any Indemnified Owner Party or Indemnified Manager Party that desires to seek indemnification under any provision of this Article 4 or any other provision of this Agreement providing for indemnification (each, in such capacity, an "Indemnified Party") shall give notice (a "Claim Notice") to party that is obligated to indemnify the Indemnified Party hereunder, either Manager or the appropriate Owner (each, in such capacity, an "Indemnitor"). Such Claim Notice shall briefly explain the nature of the claim and the parties known to be involved, and shall specify the amount thereof. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate 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 the claim becomes finally resolved, and the Second Claim Notice shall specify the amount of the claim. Any failure to give a Claim Notice in a timely manner pursuant to this Section 4.3(a) shall not limit the obligation of the Indemnitor under this Article 4, except to the extent such Indemnitor is prejudiced thereby. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a "Claim Response") within thirty (30) days (the "Response Period") after the later of (i) the date that the Claim Notice is given or (ii) if a Claim 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 any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim shall be conclusively deemed to be an obligation of such Indemnitor. If the Indemnitor notifies the Indemnified Party in the Claim Response that it disputes the claim made by the Indemnified Party, then the Indemnitor and the Indemnified Party shall endeavor in good faith for a period of thirty (30) days to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by arbitration in accordance with the provisions of Section 6.1 of this Agreement, each and any Loss established by reason of Seller and Buyer may such settlement, compromise or arbitration shall be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures deemed to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demandfinally determined.
(b) Unless Any Loss that is finally determined in the reasonable judgment of Indemnitee manner set forth in Section 4.3(a) shall be paid by the Indemnitor to the Indemnified Party within thirty (30) days after (i) there is a conflict between the positions last day of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Claim Response Period or (ii) legitimate business considerations would require the Indemnitee to defend date on which such settlement, compromise or respond to such claim arbitration described in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this last sentence of Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process4.3(a) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right been deemed to enter into be finally determined, as the case may be. If any compromise Indemnitor fails to pay all or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry part of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of indemnification obligation when due, then such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) Indemnitor shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall also be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If applicable Indemnified Party interest on the Indemnitee is not required to defend any claim under unpaid amount for each day during which the immediately preceding sentence, it shall owe no duties obligation remains unpaid at an annual rate equal to the Indemnifying Party with respect to such claim and may defendPrime Rate plus two percent (2%) per annum, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent Prime Rate in effect on the first (1st) business day of each calendar quarter shall apply to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of unpaid obligation during such claimcalendar quarter.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Exclusive Management Agreement (Crown Castle International Corp)
Procedure for Indemnification Claims. For purposes of this Agreement(a) If any Purchaser Indemnified Party, each of Seller and Buyer may be referred to as an “Indemnifying on the one hand, or Stockholders Indemnified Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” on the other hand (the "INDEMNIFIED PARTY"), has a claim or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon potential claim or arising out receives notice of any claim, potential claim or the commencement of any action or proceeding which could give rise to an obligation on the part of the Stockholders or Purchaser, as the case may be, to provide indemnification (the "INDEMNIFYING PARTY") pursuant to Section 10.2 or 10.3, respectively, the Indemnified Party shall promptly give the Indemnifying Party or the Representative, as the case may be, written notice thereof (an "INDEMNIFICATION CLAIM"); PROVIDED, HOWEVER, that the failure to give such prompt notice shall not prevent any Indemnified Party from being indemnified hereunder for any Losses, except to the extent that the failure to so promptly notify the Indemnifying Party or Representative, if the Stockholders are the Indemnifying Party, actually damages the Indemnifying Party. All determinations under this Agreement to be made by the Stockholders shall be made by the Representative and the Representative's decisions shall be binding on the Stockholders.
(b) In the event of a claim, a potential claim or the commencement of any action or proceeding by any person not a third party which could give rise to this Agreementan obligation to provide indemnification pursuant to Sections 10.2 or 10.3, shall be as follows:
the Indemnified Party will give the Indemnifying Party or if the Stockholders are the Indemnifying Party, Representative, prompt written notice thereof (a) If an Indemnitee believes the "THIRD PARTY INDEMNIFICATION CLAIM"); PROVIDED, HOWEVER, that it has suffered or incurred any Loss, such Indemnitee shall the failure of the Indemnified Party to so promptly notify the Indemnifying Party, or the Representative, as the case may be, shall not prevent any Indemnified Party from being indemnified for any Losses, except to the extent that the failure to so promptly notify actually damages the Indemnifying Party.
(c) If the Indemnifying Party (or if the Stockholders are the Indemnifying Party, the Representative) confirms in writing describing to the Indemnified Party within 15 days after receipt of the Third Party Indemnification Claim the Indemnifying Party's responsibility to indemnify and hold harmless the Indemnified Party therefor in accordance herewith and within such Loss15-day period demonstrates to the Indemnified Party's reasonable satisfaction that, as of such time, the Indemnifying Party has sufficient financial resources in order to indemnify for the full amount thereofof any potential liability in connection with such claim, the Indemnifying Party (or if the Stockholders are the Indemnifying Party, the Representative) may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel, which counsel shall be reasonably satisfactory to the Indemnified Party, any such matter involving the asserted liability of the Indemnified Party. If the Indemnifying Party (or if the Stockholders are the Indemnifying Party, the Representative) elects to compromise or defend any such asserted liability in accordance herewith, it shall within 15 days (or sooner, if knownthe nature of the asserted liability so requires) notify the Indemnified Party of its intent to do so, and the method Indemnified Party shall cooperate, at the expense of computation the Indemnifying Party, in the compromise of, or defense against, any such asserted liability; PROVIDED THAT (i) the Indemnified Party may, if it so desires, employ counsel at its own expense to assist in the handling of any such Lossthird party claim, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify (ii) the Indemnifying Party promptly in writing or Representative, as soon as practicable but in applicable, shall keep the Indemnified Party (or if the Stockholders are the Indemnified Party, the Representative) advised of all material events with respect to any event within 30 days following receipt such third party claim, (iii) the Indemnifying Party (or if the Stockholders are the Indemnifying Party, the Representative) shall obtain the prior written approval of notice the Indemnified Party (or if the Stockholders are the Indemnified Party, the Representative) (which approval may not be unreasonably withheld), before ceasing to defend against such third party claim or entering into any settlement, adjustment or compromise of such third party claim involving injunctive or similar equitable relief being asserted against any Indemnified Party or any of its Affiliates and (iv) no Indemnifying Party or the Representative, as applicable, will, without the prior written consent of each Indemnified Party or Representative, if the Stockholders are the Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened demand.
, claim, action or cause of action, suit or proceeding in respect of which indemnification may be sought hereunder, unless such settlement, compromise or consent includes an unconditional release of all Purchaser Indemnified Parties (b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of if the Indemnifying Party and is the Indemnitee in conducting the defense of such claim Stockholders) or all Stockholders Indemnified Parties (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, if the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect is Purchaser) from all liability arising out of such claim, be entitled action, suit or proceeding. Notwithstanding anything contained herein to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereundercontrary, the Indemnifying Party shall not settle be entitled to have, and the Indemnified Party shall have, sole control over the defense, settlement, adjustment or compromise of any third party non-monetary claim that seeks an order, injunction or other equitable relief against any Indemnified Party or its Affiliates which, if successful, could materially interfere with the business, assets, liabilities, obligations, financial condition or results of operations of the Indemnified Party or any of its Affiliates. If the Indemnifying Party elects not to compromise or defend against the asserted liability, or fails to notify the Indemnified Party or Representative, if the Stockholders are the Indemnified Party, of its election as herein provided, the Indemnified Party may, at the Indemnifying Party's expense, pay, compromise or defend against such asserted liability.
(d) Notwithstanding Section 10.4(c) above, Purchaser shall have the right to control the conduct of any audit or administrative or court proceeding relating to Taxes of the Company. Purchaser shall keep the Representative informed on a current basis of the progress of any such audit or proceeding the outcome of which could require the Stockholders to indemnify any Purchaser Indemnified Party (including, without limitation, providing upon request copies of correspondence received from the IRS or any taxing authority, domestic or foreign) and shall permit the Representative to participate at its own expense in the preparation of any briefs, memoranda or other similar materials to be submitted in connection with such audit or proceeding. Purchaser shall not agree to compromise or settle any such audit or proceeding without the prior written consent of the IndemniteeRepresentative, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claimdelayed.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their The respective indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees the Selling Stockholders and Seller Indemnitees may the Company pursuant to Sections 14.2 and 14.4 shall be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The conditioned upon compliance by the Selling Stockholders and the Company with the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, provided, that except for compliance with the submission of a claim within the survival period as provided for in Section 14.1 (which requirement shall be as follows:absolute and unqualified), the failure of an Aggrieved Party to comply with the procedural requirements of this Section 14.6 shall result in the extinguishment of such Aggrieved Party's indemnification claim only if and to the extent that the failure to comply results in prejudice to the Indemnifying Party.
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the "Aggrieved Party") which could reasonably result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and provide a reasonable estimate of the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable but in to assume the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demandproceeding (including any action or proceeding resulting from any such claim).
(b) Unless in the reasonable judgment The Indemnifying Party may assume control of Indemnitee (i) there is such a conflict between the positions of claim only if the Indemnifying Party and the Indemnitee acknowledges unconditionally that it is liable to pay indemnification hereunder for such a claim. The Aggrieved Party may participate, at its expense, in conducting the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Aggrieved Party agrees to participate therein after cooperate and make available to the Indemnified Party all books and records and such assumptionofficers, but the costs of such participation (other than the costs of providing witnesses or documents at the request employees and agents of the Indemnifying Aggrieved Party or as are reasonably necessary and useful in response to legal process) following such assumption shall be at connection with the expense of the Indemniteedefense. Upon assuming such defense, the The Indemnifying Party shall have full right to enter into any compromise not, in the defense of such claim, action or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderproceeding, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(ec) Both If the Indemnifying Party does not assume the defense of any such claim within thirty (30) days of its tender, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents of the Indemnifying Party as are reasonably necessary and useful in connection with the defense.
(d) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, compromise records, officers, employees or settlement agents, as required by the terms of any claimparagraphs (b) and (c), respectively, of this Section 14.6 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including without limitation making available reasonable legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Samples: Recapitalization Agreement (Young America Holdings Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their The respective ------------------------------------ indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees the parties pursuant to Sections 13.2 and Seller Indemnitees may 13.3 shall be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The conditioned upon compliance by the other parties with the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the "Aggrieved Party") which could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable to assume the defense of any such claim, action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such claim, action or proceeding within a reasonable time, but in no event more than fifteen days after notice thereof shall have been given to the indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such claim, action or proceeding; provided, however, that the Indemnifying Party shall not be deemed to have waived its right to contest and defend against any event within 30 days following receipt claim of notice the Aggrieved Party for indemnification hereunder based upon or arising out of such third party claim claim, action or demandproceeding.
(b) Unless in If the reasonable judgment Indemnifying Party assumes the defense of Indemnitee (i) there is a conflict between any such claim, action or proceeding, the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnitee Indemnifying Party or any judgment or award rendered in conducting connection with such claim, action or proceeding. The Aggrieved Party may participate, at its expense, in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Aggrieved Party agrees to participate therein after cooperate and make available to the Indemnified Party all books and records and such assumptionofficers, but employees and agents as are reasonably necessary and useful in connection with the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemniteedefense. Upon assuming such defense, the The Indemnifying Party shall have full right to enter into any compromise not, in the defense of such claim, action or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderproceeding, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(ec) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. If the Indemnifying Party, compromise within ten days after notice shall have been given to it by the Aggrieved Party of the latter's intention to effect a settlement of any such claim, action or proceeding, which notice shall describe with particularity the terms of any such proposed settlement, shall not deposit with an escrow mutually satisfactory to the Aggrieved Party and the Indemnifying Party a sum equivalent to the total amount demanded in such claim, action or proceeding or deliver to the Aggrieved Party a surety bond or an irrevocable letter of credit for such sum in form and substance reasonably satisfactory to the Aggrieved Party, then the Aggrieved Party may settle such claim, action or proceeding on the terms detailed in its notice to the Indemnifying Party, and the Indemnifying Party shall be deemed to have agreed to the terms of such settlement and shall not thereafter in any proceeding by the Aggrieved Party for indemnification question the propriety of such settlement. If the Indemnifying Party makes an escrow deposit or delivers a surety bond or letter of credit as aforesaid and thereafter the Aggrieved Party settles such claim, action or proceeding, then in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, the Aggrieved Party shall have the burden of proving the amount of such liability of the Indemnifying Party, and the amount of the payments made in settlement of any claim, including without limitation making available action or proceeding shall not be determinative as between the Aggrieved Party and the Indemnifying Party of the amount of such indemnification liability, except that the amount of the settlement payments shall constitute the maximum amount of the indemnification liability of the Indemnifying Party. Such escrow deposit, surety bond or letter of credit shall by their respective terms be payable to the Aggrieved Party in an amount determined in accordance with the last sentence of this paragraph (c) and in the event the Indemnifying Party is held liable for indemnification hereunder. If the Indemnifying Party neither makes an escrow deposit or delivers a surety bond or letter of credit as aforesaid, so that no settlement of such claim, action or proceeding is effected, in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, such liability shall be for the amount of any judgment or award rendered with respect to such claim or in such action or proceeding and of all expenses, legal and otherwise, incurred by the Aggrieved Party in the defense against such claim, action or proceeding.
(d) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of paragraphs (b) and (c), respectively, of this Section 13.4 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each The respective indemnification obligations of Seller and Buyer may SCOA pursuant to Section 6.2(a) and Purchaser pursuant to Section 6.2(b) shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person Person not a party to this Agreement, shall be as follows:.
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the "Aggrieved Party") which could result in liability of another party hereto (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable to assume the defense of any such claim, action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such claim, action or proceeding within a reasonable time, but in no event more than 15 days after notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such claim, action or proceeding; provided that the Indemnifying Party shall not be deemed to have waived its right to contest and defend against any event within 30 days following receipt claim of notice the Aggrieved Party for indemnification hereunder based upon or arising out of such third party claim claim, action or demandproceeding.
(b) Unless in If the reasonable judgment Indemnifying Party assumes the defense of Indemnitee (i) there is a conflict between any such claim, action or proceeding, the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnitee Indemnifying Party or any judgment or award rendered in conducting connection with such claim, action or proceeding. The Aggrieved Party may participate in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Aggrieved Party agrees to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of cooperate and make available to the Indemnifying Party or all books and records and such officers, employees and agents as are reasonably necessary and useful in response to legal process) following such assumption shall be at connection with the expense of the Indemniteedefense. Upon assuming such defense, the The Indemnifying Party shall have full right to enter into any compromise not, in the defense of such claim, action or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderproceeding, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(ec) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. If the Indemnifying Party, compromise within 20 days after notice shall have been given to it by the Aggrieved Party of the latter's intention to effect a settlement of any such claim, action or proceeding, which notice shall describe with particularity the terms of any such proposed settlement, shall not deposit with an escrowee mutually satisfactory to the Aggrieved Party and the Indemnifying Party a sum equivalent to the total amount demanded in such claim, action or proceeding or deliver to the Aggrieved Party a surety bond or an irrevocable letter of credit for such sum in form and substance reasonably satisfactory to the Aggrieved Party, then the Aggrieved Party may settle such claim, action or proceeding on the terms detailed in its notice to the Indemnifying Party, and the Indemnifying Party shall be deemed to have agreed to the terms of such settlement and shall not thereafter in any proceeding by the Aggrieved Party for indemnification question the propriety of such settlement. If the Indemnifying Party makes an escrow deposit or delivers a surety bond or letter of credit as aforesaid and thereafter the Aggrieved Party settles such claim, action or proceeding, then in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, the Aggrieved Party shall have the burden of proving the amount of such liability of the Indemnifying Party, and the amount of the payments made in settlement of any claim, including without limitation making available action or proceeding shall not be determinative as between the Aggrieved Party and the Indemnifying Party of the amount of such indemnification liability, except that the amount of the settlement payments shall constitute the maximum amount of the indemnification liability of the Indemnifying Party. Such escrow deposit, surety bond or letter of credit shall by its respective terms be payable to the Aggrieved Party in an amount determined in accordance with the last sentence of this clause (c) and in the event the Indemnifying Party is held liable for indemnification hereunder. If the Indemnifying Party neither makes an escrow deposit nor delivers a surety bond or letter of credit as aforesaid, so that no settlement of such claim, action or proceeding is effected, in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, such liability shall be for the amount of any judgment or award rendered with respect to such claim or in such action or proceeding and of all expenses, legal and otherwise, incurred by the Aggrieved Party in the defense against such claim, action or proceeding.
(d) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of clauses (b) and (c), respectively, of this Section 6.3 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes The respective indemnification obligations of this Agreement, each of the Seller and Buyer may pursuant to Sections 6.2 and 6.3 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by the Seller and Buyer with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(aA) If at any time a claim shall be made, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced, such Indemnitee against a party to this Agreement (the "Aggrieved Party") which could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations under this Agreement, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing such Lossnotice of that claim, action or proceeding within as soon as reasonably practical after the amount thereof, if known, and Aggrieved Party has received notice or the method of computation of such Loss, all with reasonable particularity and containing a reference claim (except that failure to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss give timely notice shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify not excuse the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of except to the extent that it is materially prejudiced by that failure). The notice of such third party claim shall state the basis for the claim, action or demand.
proceeding and the amount claimed, (bto the extent that amount is determinable at the time when the notice is given) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of and shall permit the Indemnifying Party and the Indemnitee in conducting to assume the defense of any such claim claim, action or proceeding (iiincluding any action or proceeding resulting from any such claim) legitimate business considerations would require with counsel which is reasonably acceptable to the Indemnitee Aggrieved Party. Failure by the Indemnifying Party to notify the Aggrieved Party of his, her or its election to defend the claim, action or respond proceeding within a reasonable time, but in no event more than 15 days after the notice shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shallof his, by giving notice thereof her, or its right to defend the claim, action or proceeding if and to the Indemnitee confirming extent that the Indemnifying Party’s obligation under this Section 5 to indemnify Aggrieved Party was materially prejudiced by the Indemnitee in respect of such claimdelay; provided, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionhowever, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived the right to contest and defend against any claim of the Aggrieved Party for indemnification under this Agreement based upon or arising out of that claim, action or proceeding.
(B) If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to that claim, action or proceeding shall be limited to taking all steps reasonably necessary in the defense or settlement of it and, provided the Indemnifying Party is held to be liable for indemnification under this Agreement, paying all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with that claim, action or proceeding. The Aggrieved Party may participate, at his, her, or its expense, in the defense of that claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of that claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of the claim, action or proceeding, enter into any settlement without the prior written consent of the IndemniteeAggrieved Party, which consent will shall not be unreasonably withheld; . If the Aggrieved Party and provided, further, the Indemnifying Party may not consent to entry of are both defendants in any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
action and either (ci) With respect to a claim as to which the Indemnifying Party agrees, or (iii) does not in the opinion of counsel for the Aggrieved Party, representation of both the Indemnifying Party and the Aggrieved Party by the same counsel is inappropriate under applicable standards of professional conduct because of actual or potential conflicting interests between them, then the Aggrieved Party shall have the right to assume select separate counsel, at the defense under Section (b) or (ii) shall not have exercised its right cost and expense of the Indemnified Party, to assume the defense, the Indemnitee shall assume such legal defense and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to otherwise participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section action.
(cC) unless If the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is does not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party assume or proceed with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) aboveany such claim, action or proceeding, the Indemnitee Aggrieved Party may, at the risk, cost and expense of the Indemnifying Party, defend against the claim, action or proceeding in a manner as he, she, or it may compromise deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Aggrieved Party shall not, in the defense of any such claim, action or settle proceeding, enter into any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim settlement without the prior written consent of the Indemnifying Party, which consent will shall not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Stock Purchase Agreement (Star Multi Care Services Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their The respective ------------------------------------ indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees SSC and Seller Indemnitees may UPI pursuant to Sections 11.2 and 11.3 shall be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The conditioned upon compliance by SSC and UPI with the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, :
11.4.1 If at any time a claim shall be as follows:
made or threatened, or an action or proceeding shall be commenced or threatened, against a party hereto (athe "Aggrieved Party") If an Indemnitee believes that it has suffered or incurred any Losswhich could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, such Indemnitee the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable but in to assume the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demand.
proceeding (b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party and to notify the Indemnitee in conducting the defense Aggrieved Party of such claim or (ii) legitimate business considerations would require the Indemnitee its election to defend any such claim, action or respond proceeding within a reasonable time, but in no event more than fifteen days after notice thereof shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shall, by giving notice thereof of its right to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of defend such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionaction or proceeding; provided, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehowever, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived its right to contest and defend against any claim without the prior written consent of the IndemniteeAggrieved Party for indemnification hereunder based upon or arising out of such claim, which consent will not be unreasonably withheld; and provided, further, action or proceeding.
11.4.2 If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with such claim, action or proceeding. The Aggrieved Party may not participate, at its expense, in the defense of such claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnified Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(e) Both 11.4.3 If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate, provided that such claim shall not be compromised without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Aggrieved 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 11.4.3 and for any final judgment (subject to any right of appeal) and the Indemnifying Party agrees to indemnify and hold harmless the Aggrieved Party from and against any and all Damages by reason of such settlement or judgment.
11.4.4 In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of Sections 11.4.2 and 11.4.3, the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other similar expenses paid by the party providing such cooperation to its officers and employees in connection therewith.
11.4.5 To the extent that any claim for indemnification hereunder is covered by insurance held by the Aggrieved Party, such Aggrieved Party shall be entitled to indemnification pursuant to this Section 11 only with respect to the amount of Damages that are in excess of the cash proceeds received by such Aggrieved Party pursuant to such insurance. If such Aggrieved Party receives such cash insurance proceeds prior to the time such claim is paid, then the amount payable by the Indemnifying Party pursuant to such claim shall be reduced by the amount of such insurance proceeds. If such Aggrieved Party receives such cash insurance proceeds after such claim is paid, then upon receipt by the Aggrieved Party of any cash proceeds pursuant to such insurance up to the amount of the Damages incurred by such Aggrieved Party with respect to such claim, including without limitation making available such Aggrieved Party shall repay any portion of such amount which was previously paid by the Indemnifying Party to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hoursIndemnified Party in satisfaction of such claim.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) The persons seeking indemnity under this Article VIII are referred to collectively herein as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VIII are referred to herein as "Indemnifying Parties".
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Exchange Agreement (Chiste Corp)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand, provided that the failure so to provide any such notice shall not relieve an Indemnifying Party from any liability hereunder (except and only to the extent that such Indemnifying Party has been damaged thereby).
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheldwithheld or delayed; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stratus Services Group Inc)
Procedure for Indemnification Claims. For purposes (a) The party seeking indemnification under Article 9 of this Agreement, each of Seller and Buyer may be referred Agreement (the “Indemnified Party”) shall give prompt notice to as an the other party (the “Indemnifying Party” in connection with their ”) of any Damages as to which indemnification obligations herewith. For purposes of is sought under this Agreement. So long as any monies are held by the Escrow Agent pursuant to the Escrow Agreement, Buyer Indemnitees notice shall also be given to the Escrow Agent.
(b) In the case of any third-party claim, the Indemnified Party shall permit the Indemnifying Party, at the Indemnifying Party’s sole cost and Seller Indemnitees may expense, to assume the defense of any claim or any litigation resulting from such claim. Failure by the Indemnifying Party to notify the Indemnified Party of its election to defend any such action within fifteen (15) calendar days after notice thereof shall be referred deemed a waiver by the Indemnifying Party of its right to individually as an “Indemnitee” defend such action. If the Indemnifying Party assumes the defense of any such claim or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon litigation resulting therefrom, the Indemnifying Party shall defend or settle such claim or litigation and hold the Indemnified Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any claim, action settlement or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the judgment therefrom. The Indemnifying Party promptly shall not, in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Partyany litigation resulting therefrom, the Indemnifying Party shall, by giving notice thereof consent to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect (except with the written consent of a claim the Indemnified Party, which consent shall not be unreasonably withheld), which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Indemnified Party of a release from all liability in respect of to such claimclaim or litigation. If such defense is unsuccessful or abandoned by the Indemnifying Party, then, upon the Indemnifying Party’s failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnified Party may pay and settle the same and the Indemnifying Party’s liability shall be conclusively established by such payment.
(ec) Both If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Indemnified Party may defend against and settle such claim or litigation in such manner as it may, in its sole discretion, deem appropriate, and the Indemnitee Indemnifying Party shall cooperate fully with one another promptly reimburse the Indemnified Party for the amount of all expenses, legal or otherwise, incurred by the Indemnified Party in connection with the defense, compromise defense against or settlement of such litigation. If no settlement is made, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any claimjudgment rendered with respect to such claim or such litigation and of all expenses, including without limitation making available to legal or otherwise, incurred by the other all pertinent information and witnesses within its control at reasonable intervals during normal business hoursIndemnified Party in the defense thereof.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that case of any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against third party that may give rise to a claim for indemnification by the Buyer or sought to Sellers, as the case may be collected from hereunder (in such Indemnitee by a third partycapacity, the Indemnitee "Indemnified Party"), or if the Indemnified Party obtains knowledge of any circumstance that may give rise to such a claim for indemnification hereunder, such Indemnified Party shall notify give prompt written notice of such claim, demand or circumstance (described in reasonable detail) to the Buyer or Sellers, as the case may be (in such capacity, the "Indemnifying Party"); provided that the failure to provide such notice shall not affect the obligation of the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt hereunder except to the extent, if any, that the lack of prompt notice adversely affects the ability of the Indemnifying Party to defend against or diminish the losses arising out of such third party claim, demand or circumstance. The Indemnifying Party shall have the right to defend and to direct the defense against any such claim or demand.
(b) Unless , in its name or in the reasonable judgment name of Indemnitee the Indemnified Party, as the case may be, at the expense of the Indemnifying Party, and with counsel mutually approved by the Indemnifying Party and Indemnified Party unless (i) such claim or demand seeks an order, injunction or other equitable relief against the Indemnified Party or (ii) the Indemnified Party shall have reasonably concluded that there is a conflict of interest between the positions of Indemnified Party and the Indemnifying Party and in the Indemnitee in conducting conduct of the defense of such claim or (ii) legitimate business considerations would require demand. Notwithstanding anything in this Agreement to the Indemnitee to defend or respond to such claim in a manner different from that recommended by contrary, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party, and keep the Indemnifying Party shallfully informed, by giving notice thereof to in the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled claim or demand. The Indemnified Party shall have the right to assume and control such participate in the defense of any claim or demand with counsel chosen by it. The Indemnitee shall be entitled employed at its own expense; provided, however, that, in the case of any claim or demand described in clause (i) or (ii) above or as to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of which the Indemnifying Party shall not in fact have employed counsel to assume the defense against such claim or in response to legal process) following demand, the reasonable fees and disbursements of such assumption counsel shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defenseParty. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe have no duties to the Indemnifying Party indemnification obligations with respect to any such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If demand which shall be settled by the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim Indemnified Party without the prior written consent of the Indemnifying Party, which consent will shall not be unreasonably withheld; provided. The Indemnifying Party shall not, further, that if in without the reasonable judgment written consent of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement Indemnified Party, settle or compromise any action in any manner that would materially and adversely affect the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimIndemnified Party.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their The respective indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees the parties pursuant to Sections 11.2 and Seller Indemnitees may 11.4 shall be referred subject to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred proceeding shall be commenced or threatened, against an Indemnified Party which could result in liability of either party (the "Indemnifying Party") under its indemnification obligations hereunder, the Indemnified Party shall give to the Indemnifying Party prompt notice of such claim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof (to the extent such amount is determinable at the time when such notice is given) and shall permit the Indemnifying Party to assume, at its own cost, the defense of any Losssuch claim, action or proceeding (including any action or proceeding resulting from any such Indemnitee claim) unless (a) in the reasonable opinion of counsel for the Indemnified Party, there is a conflict or potential conflict of interest between the Indemnified Party and such Indemnifying Party in such claim, action or proceeding, in which event the Indemnified Party shall so be entitled to direct the defense with respect to, but only with respect to, those issues as to which such conflict exists, or (b) the claim is brought by a Governmental Entity (other than a taxing authority) or a putative class action in which event the Indemnified Party shall be entitled to direct the defense of the claim with counsel reasonably acceptable to the Indemnifying Party. The failure to promptly notify the Indemnifying Party promptly in writing describing will not relieve the Indemnifying Party of any Liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Lossclaim is prejudiced by the Indemnified Party's failure to give notice within such time period. The Indemnifying Party shall have 30 days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the amount settlement or defense thereof, if known, and the method of computation of such Loss, all Indemnified Party shall cooperate with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto it in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demandconnection therewith.
(b) Unless in If the reasonable judgment Indemnifying Party assumes the defense of Indemnitee (i) there is a conflict between any such claim, action or proceeding, the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, subject to the limitation on the amount of indemnification set forth in this Section 11, to holding the Indemnified Party harmless from and against any and all Losses and expenses caused by or arising out of any settlement approved by the Indemnitee Party or any judgment or award rendered in conducting connection with such claim, action or proceeding. The Indemnified Party may participate, at its expense, in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Indemnified Party agrees to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of cooperate and make available to the Indemnifying Party or in response to legal process) following all books and records and such assumption shall be at the expense officers, employees and agents of the IndemniteeIndemnified Party as are reasonably necessary and useful in connection with the defense. Upon assuming such defense, the The Indemnifying Party shall have full right not, in the defense of such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any compromise or settlement which is dispositive of the matter involved; provided that settlement, except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without (i) in either event with the prior written consent of the Indemnitee, Indemnified Party (which consent will not be unreasonably withheld; and provided), further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim (ii) which does not include includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Indemnified Party of a release from all liability in respect of such claim, action or proceeding, and (iii) which does not require the Indemnified Party to conduct business prospectively in any particular materially adverse manner.
(c) If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Indemnified Party may defend against such claim, action or proceeding in such manner as it may deem appropriate, but shall not settle any such claim, action or proceeding without the Indemnifying Party's consent, which consent will not be unreasonably withheld. The Indemnifying Party agrees to cooperate and make available to the Indemnified Party all books and records and such officers, employees and agents of the Indemnifying Party as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall reimburse the Indemnified Party for any and all fees and expenses (including the entire expense of settling (if applicable) the claim, action or proceeding) incurred in such defense, subject to the limitations set forth herein, including the limitations set forth in Section 11.3 hereof.
(d) In the event an Indemnified Party or Indemnifying Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of paragraphs (b) and (c), respectively, of this Section 11.5 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including reasonable legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other similar expenses paid by the party providing such cooperation to its officers and employees in connection therewith.
(e) Both The Indemnifying Party shall be reimbursed by the Indemnified Party for any amounts expended by the Indemnifying Party (including legal fees and expenses) pursuant to this Section 11.5 in the Indemnitee event it is established or determined that the Indemnifying Party is not liable for indemnification pursuant to Section 11.2 hereof.
(f) Following the Closing, each party shall cooperate fully with one another in connection with promptly notify the defense, compromise or settlement other party of any claim, including without limitation making available action or proceeding, or of any other facts or circumstances, of which it becomes aware that could reasonably be expected to result in Losses (as defined herein) for which the other party would have indemnification obligations under this Section 11 (including, for this purpose, any such matter for which Seller would be required to indemnify Purchaser but for the application of the Deductible). The notified party may, but shall not be required to, at its cost and expense, take reasonable action in respect of any such matter in order to avoid or limit any such Losses, and, in the case of any claim, action or proceeding, shall have the right to assume the defense thereof in accordance with the procedures set forth in this Section 11.5; provided, however, that the limitations set forth in Section 11.3 shall apply to any actual Losses resulting therefrom. In addition, in the event Seller is notified by Purchaser of any such matter, upon Seller's acknowledgement that it either (i) is obligated to pay Losses in connection with such matter or (ii) would be so obligated but for the operation of the Deductible, Purchaser shall, at Seller's request, cause the Company to assign to Seller any claim that the Company may have against third parties (including, without limitation, any Prior Servicer) in respect of such matter and to cooperate in good faith with Seller in connection with any Action instituted by Seller against any such third party for purposes of holding such third party responsible for all pertinent information and witnesses within its control at reasonable intervals during normal business hoursor a portion of any such Loss.
Appears in 1 contract
Samples: Stock Purchase Agreement (Wilshire Financial Services Group Inc)
Procedure for Indemnification Claims. For purposes The respective indemnification obligations of this Agreement, each of Seller the parties pursuant to Sections 8(a) and Buyer may 8(b), above, shall be referred to as an “Indemnifying Party” in connection conditioned upon strict compliance with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, . If at any time a claim shall be as follows:
made, or an action or proceeding shall be commenced, against a party to this Agreement (athe “Aggrieved Party”) If an Indemnitee believes that it has suffered or incurred any Losswhich could result in liability of the other party (the “Indemnifying Party”) under its indemnification obligations under this Agreement, such Indemnitee the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing such Lossnotice of that claim, action or proceeding within five (5) Business Days following receipt of service of any claim, action or proceeding by the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference Party (except that failure to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss give that notice shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify not excuse the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of except to the extent that it is materially prejudiced by that failure). The notice of such third party claim shall state the basis for the claim, action or demand.
proceeding and the amounts claimed, (bto the extent that amount is determined at the time when the notice is given) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of and shall permit the Indemnifying Party and the Indemnitee in conducting to assume the defense of any such claim claim, action or proceeding (iiincluding any action or proceeding resulting from any such claim) legitimate business considerations would require with counsel which is reasonably acceptable to the Indemnitee Aggrieved Party. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend the claim, action or respond proceeding within a reasonable time, but in no event more than fifteen (15) days after the notice shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume defend the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend action or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any timeproceeding; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used deemed to establish, have waived the existence or amount right to contest and defend against any claim of the liability Aggrieved Party for indemnification under this Agreement based upon or arising out of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any that claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hoursaction or proceeding.
Appears in 1 contract
Samples: Affiliation and License Agreement (Playboy Enterprises Inc)
Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an "Underlying Claim") has arisen entitling them to seek indemnification under Section 3.2, 7.1(d) or 9 of this Agreement, each such parties (the "Indemnified Parties") shall promptly send a notice ("Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the "Indemnity Claim"); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 9.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does NOT result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties' failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 7 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 9.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) The MMT Indemnified Parties and the Members Indemnified Parties are referred to collectively herein as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VI are referred to herein as "Indemnifying Parties."
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto, or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing his, her or its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Share Exchange Agreement (Medicine Man Technologies, Inc.)
Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an “Underlying Claim”) has arisen entitling them to seek indemnification under Section 9 of this Agreement, each of Seller and Buyer may be referred such parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to as an the parties liable for such indemnification (the “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes Parties”) of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the “Indemnity Claim”); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 9.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties’ failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay Losses incurred by the Indemnitee Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable Losses made pursuant to this Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 9.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Lossa claim for Losses other than a Third Party Claim (a “Claim”) is proposed to be made by a party entitled to indemnification hereunder (the “Indemnified Party”) against the party from whom indemnification is claimed (the “Indemnifying Party”), such Indemnitee shall so notify the Indemnified Party will give notice describing in reasonable detail the Claim (a “Claim Notice”) to the Indemnifying Party promptly in writing describing such Lossas soon as practicable after the Indemnified Party becomes aware of any fact, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference condition or event which may give rise to the provisions of Losses for which indemnification may be sought under this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss Article VIII. The Indemnifying Party shall have occurredthirty (30) Business Days from the date of delivery to it of a Claim Notice to accept or object to all or a portion of the Claim. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly disagrees with any portion of the Claim, then the Indemnifying Party shall deliver written notice to the Indemnified Party prior to the expiration of the thirty (30) Business Day period, which notice shall describe in writing as soon as practicable but in any event within 30 reasonable detail the reasons for such disagreement. If the Indemnifying Party timely delivers a dispute notice, for a period of sixty (60) days following receipt from the date of notice delivery of such third party claim or demandnotice, the Indemnifying Party and the Indemnified Party shall attempt to resolve all disputes set forth in such notice.
(b) Unless If any third party seeks any indemnification pursuant to this Agreement shall notify any Party with respect to any matter (a “Third Party Claim”) which, if true (without any responsibility for independent investigation of the facts or law contained in such notice from the reasonable judgment of Indemnitee third party), would give rise to a claim for indemnification against any other Indemnifying Party under this Article VIII, then the Indemnified Party shall promptly notify each Indemnifying Party in writing; provided, however, (i) there is a conflict between that no delay on the positions part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the Indemnitee extent) the Indemnifying Party thereby is prejudiced
(c) Indemnified Party in conducting writing within ten (10) business days after the Indemnified Party has given notice of the Third Party Claim that it will indemnify the Indemnified Party against any Losses arising out of such Third Party Claim and that it intends to assume the defense of such claim or the Third Party Claim, (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof provides reasonable evidence to the Indemnitee confirming Indemnified Party of its financial ability to satisfy its indemnification obligations, and (iii) the suit, action claim, liability, or obligation does not seek to impose any liability, obligation or restriction upon the Indemnified Party other than for money damages; provided, however, that the Indemnifying Party’s obligation under Party must conduct the defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this Section 5 regard; and provided further that the Indemnified Party shall have the right to indemnify retain separate co-counsel and participate in the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionthe Third Party Claim, but the costs fees and expenses of such participation (other than counsel employed by the costs of providing witnesses or documents at the request of the Indemnifying Indemnified Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defenseIndemnified Party unless, (x) the employment thereof has been specifically authorized by the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive in writing, (y) there exists a conflict between the interests of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, Indemnified Party and the Indemnifying Party shall not settle that reasonably requires the retention of separate counsel, or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, (z) the Indemnifying Party may has failed to assume the defense and employ counsel.
(d) So long as the Indemnifying Party has assumed and is actively and diligently conducting the defense of the Third Party Claim in accordance with Section 8.4(b) above, (i) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim Third Party Claim without the prior written consent of the Indemnifying Party, which consent Indemnified Party (not to be delayed or withheld unreasonably) and (ii) the Indemnified Party will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to the entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by Third Party Claim without the claimant or plaintiff to prior written consent of the Indemnifying Party of a release from all liability in respect of such claim(not to be delayed or withheld unreasonably).
(e) Both In the event the Indemnifying Party does not assume and conduct the defense of the Third Party Claim in accordance with Section 8.4(c) above, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate without the consent of the Indemnifying Party and (ii) the Indemnitee shall cooperate fully with one another Indemnifying Party will remain responsible for any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in connection with the defensenature of, compromise or settlement caused by the Third Party Claim to the fullest extent provided, but subject in all respects to the various limitations and undertakings set out in this Article XI.
(f) Amounts payable by the Indemnifying Party to the Indemnified Party in respect of any Losses for which any Party is entitled to indemnification hereunder, including the costs of defending against a Third Party Claim, shall be payable by the Indemnifying Party as incurred by the Indemnified Party.
(g) The party assuming the defense will keep the other party apprised of the status of the claim, liability or expense and any resulting suit, proceeding or enforcement action, and shall furnish such other party with all documents and information that such other party shall reasonably request and shall consult with such other party prior to acting on major matters, including without limitation making available settlement discussions. Notwithstanding anything herein stated, the party not controlling the defense shall at all times have the right to the other all pertinent information and witnesses within fully participate in such defense (at its control at reasonable intervals during normal business hours.own expense) directly or through counsel
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of (a) Any claim for indemnification under Sections 8.2 or 8.3 will be made in accordance with this AgreementSection 8.4. Purchaser Indemnified Parties and Seller Indemnified Parties are referred to herein as “Indemnified Parties” and each as an “Indemnified Party”, each of Seller and Buyer the Persons from whom indemnification may be sought pursuant to Sections 8.2 and 8.3 are referred to herein as “Indemnifying Parties” and each as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand”.
(b) Unless In the case of any claim for indemnification under Sections 8.2 or 8.3 arising from a claim of a third Person, the Indemnified Party will give the Sellers’ Representative (if the Indemnified Party is a Purchaser Indemnified Party) or Purchaser (if the Indemnified Party is a Seller Indemnified Party) written notice of such claim within twenty (20) days following the Indemnified Party’s receipt of or gaining actual knowledge of or becoming aware of such claim or the existence thereof, provided that the failure to provide such notice or a delay in providing such notice as provided in this sentence will not relieve the Indemnifying Party of his or its obligations pursuant to Section 8.2 or 8.3, as applicable, except to the extent the Indemnifying Party is materially prejudiced by such failure or delay. If at any time an Indemnified Party determines to assert a right to indemnification hereunder in respect of any other matter, the Indemnified Party will give to the Sellers’ Representative (if the Indemnified Party is a Purchaser Indemnified Party) or Purchaser (if the Indemnified Party is a Seller Indemnified Party) written notice of such determination or indemnification claim within a reasonable judgment amount of Indemnitee time after receipt of or gaining actual knowledge of or becoming aware of such claim or the existence thereof.
(c) Within fifteen (15) days after receipt of any notice referred to in paragraph (b) above, the Sellers’ Representative (if the Indemnified Party is a Purchaser Indemnified Party) or Purchaser (if the Indemnified Party is a Seller Indemnified Party) will (i) there acknowledge in writing Seller Indemnified Parties’ or Purchaser’s, as applicable, responsibility for all or part of such matter or claim for which indemnification is a conflict between sought under this Article VIII, and pay or otherwise satisfy the positions portion of such matter or claim as to which responsibility is so acknowledged, or take such other action as is reasonably satisfactory to the Indemnified Party to provide assurance for the performance of the Indemnifying Parties’ obligations hereunder, and/or (ii) give written notice to Purchaser (if the Indemnified Party is a Purchaser Indemnified Party) or the Sellers’ Representative (if the Indemnified Party is a Seller Indemnified Party) of the Indemnifying Parties’ intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, Purchaser and the Indemnitee Sellers’ Representative will negotiate in conducting good faith for a period of at least thirty (30) days to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such indemnification claim.
(d) Each party hereto shall cooperate in good faith with, make its relevant files and records available for inspection and copying by, and make such party’s officers, directors, employees and agents available and otherwise render reasonable assistance to, the other party in such party’s defense of any such claims. Each Indemnifying Party shall have the right, at his or its sole expense, to control the defense of any claim brought by any third Person (as to which indemnification is sought pursuant to this Article VIII) with counsel of such Indemnifying Party’s choice that is reasonably satisfactory to the Sellers’ Representative (if the Indemnified Party is a Seller Indemnified Party) or Purchaser (if the Indemnified Party is a Purchaser Indemnified Party), and shall have the right to settle or otherwise protect against the imposition of Liability with respect to any such claim, in each case if the Sellers’ Representative (if the Indemnified Party is a Purchaser Indemnified Party) or Purchaser (if the Indemnified Party is a Seller Indemnified Party) shall have taken the action described in clause (i) of the first sentence of Section 8.4(c) with respect to such claim; provided, however, that:
(i) the Indemnified Parties shall be entitled to participate in the defense of such claim or and to employ counsel at their own cost and expense to assist in the handling of such claim and shall have the right, but not the obligation, to assert any and all cross‑claims and counterclaims they may have;
(ii) legitimate business considerations would require such Indemnifying Party shall obtain the Indemnitee prior written approval of the Sellers’ Representative (if the Indemnified Party is a Seller Indemnified Party) or Purchaser (if the Indemnified Party is a Purchaser Indemnified Party) before entering into any settlement of any such claim or ceasing to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of against any such claim, be entitled if pursuant to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs or as a result of such participation (settlement or cessation, injunctive or other than the costs of providing witnesses or documents at the request of the Indemnifying equitable relief would be imposed against such Indemnified Party or its Affiliates or (if such Indemnified Party is a Purchaser Indemnified Party) such settlement or cessation could, in response to legal processthe reasonable and good faith opinion of Purchaser, have an adverse effect on the Transferred Companies;
(iii) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or enter into any settlement in respect of a claim which that does not include as an unconditional term thereof the giving by the each claimant or plaintiff to the Indemnitee each Indemnified Party of a written release from all liability Liability in respect of such claim.; and
(civ) With respect to a claim as to which at the election of the Indemnified Party, such Indemnifying Party (i) does not and the Indemnified Party shall have the right to assume joint control over the defense under Section (b) or (ii) shall not settlement of any such claim, each party to employ counsel at its own cost and expense, to the extent such claim seeks an order, injunction or other equitable relief against such Indemnified Party or, if such Indemnified Party is a Purchaser Indemnified Party, to the extent such claim could, in the reasonable good faith opinion of Purchaser, have exercised an adverse effect on the business of Purchaser or its right to assume Affiliates, including, after the defenseClosing, the Indemnitee shall assume and control Transferred Companies, or adversely affect the defense Liability of and contest such claim with counsel chosen by it and Purchaser or any of its Affiliates, including, after the Closing, the Transferred Companies, for Taxes. In the event the Indemnifying Party shall be obligated fail to pay all reasonable attorneys’ fees and expenses defend, contest or otherwise protect against the imposition of the Indemnitee incurred in connection with any such defense. The Indemnifying Party shall be entitled damages as to participate in the defense of any such claim, the Indemnified Party shall have the right, but not the cost of such participation shall be at its own expense. Notwithstanding the foregoingobligation, the Indemnitee shall not be required to defend defend, contest or assert any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to cross‑claim or counterclaim or otherwise protect against such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may make any compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not settlement thereof and recover from and be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced indemnified by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to for the entire reasonable cost thereof, including from legal expenses, disbursements and all amounts paid as a result of such settlement matter or compromise, claim. If the Indemnitee may enter into such settlement Sellers’ Representative (if the Indemnified Party is a Purchaser Indemnified Party) or compromise and such settlement or compromise shall Purchaser (if the Indemnified Party is a Seller Indemnified Party) does not be conclusive as to, or otherwise be used to establish, take the existence or amount action described in clause (i) of the liability first sentence of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise Section 8.4(c) with respect to a claim which does not include as an unconditional term thereof matter or claim, the giving by Indemnified Party shall, without limitation of its rights under this Article VIII, retain sole control over the claimant defense or plaintiff to the Indemnifying Party of a release from all liability in respect settlement of such matter or claim.
(e) Both The rights of the Indemnifying Party Indemnified Parties under this Article VIII are in addition to all other rights or remedies the Indemnified Parties may have under this Agreement or otherwise and will continue in effect notwithstanding any statute of limitations that would otherwise bar the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement exercise of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hourssuch rights.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) The MWBS Indemnified Parties and the Shareholder Indemnified Parties are referred to collectively herein as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VI are referred to herein as "Indemnifying Parties."
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto, or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing his, her or its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Share Exchange Agreement (Mountain West Business Solutions, Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of (a) In order for a CAE Indemnified Party or a Seller and Buyer may be Indemnified Party (collectively referred to as an “Indemnifying Indemnified Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures ”) to be followed with entitled to any indemnification provided for under this Agreement in respect to indemnification claims based upon or of, arising out of any claim, action or proceeding involving a claim or demand for a Loss made by any person not Person other than the parties against the Indemnified Party (a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss"Third Party Claim"), such Indemnitee Indemnified Party shall so notify deliver written notice thereof to the party against whom indemnity is sought (the "Indemnifying Party") promptly after receipt by such Indemnified Party promptly of notice of the Third Party Claim (and in writing any event within 15 days after first becoming aware of the facts giving rise to such Third Party Claim), describing such Lossin reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount thereof, if known, and the or method of computation of the amount of such Loss, all claim (if known) and such other information with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify thereto as the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demandmay reasonably request.
(b) Unless in The Indemnifying Party shall have the reasonable judgment of Indemnitee (i) there is a conflict between right at any time to assume the positions defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee in conducting Indemnified Party. If the Indemnifying Party assumes the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying PartyThird Party Claim, the Indemnifying Indemnified Party shall, by giving notice thereof shall have the right to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume employ separate counsel and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionin the defense thereof, but the costs fees and expenses of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption counsel shall be at the expense of the IndemniteeIndemnified Party. Upon assuming If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defensedefense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, if there is a reasonable probability that a claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other monetary payments, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive not, without the written consent of the matter involved; provided Indemnified Party (not to be unreasonably withheld), settle or compromise any claim or consent to the entry of any judgment that except (A) provides for the settlement of a claim that involves no obligation of the Indemnitee relief other than the payment of money for which indemnification is provided hereundermonetary damages, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of Indemnified Party a release from all liability Liability in respect of to such claim, or (C) contains an admission of Liability or violation of any applicable law.
(c) With respect to In the event any Indemnified Party should have a claim as against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to which be collected from such Indemnified Party, the Indemnified Party shall deliver written notice of such claim promptly to the Indemnifying Party (i) does not have and in any event within 15 days of first becoming aware of the right facts giving rise to assume such claim), describing in reasonable detail the defense under Section (b) or (ii) shall not have exercised its right facts giving rise to assume the defenseany claim for indemnification hereunder, the Indemnitee shall assume and control amount or method of computation of the defense amount of and contest such claim (if known) and such other information with counsel chosen by it and respect thereto as the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunderreasonably request.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Stock Purchase Agreement (China Architectural Engineering, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred at any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Losstime any of Buyer Indemnified Parties determines to assert a right to indemnification hereunder, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Buyer Indemnified Party promptly in writing as soon as practicable but in any event within 30 days following receipt of will give Sellers written notice of such third party claim or demanddetermination.
(b) Unless Within 10 days after receipt of the notice referred to in the reasonable judgment of Indemnitee clause (a) above, Sellers will (i) there acknowledge in writing the responsibility of Sellers for all or part of such matter, and will pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Buyer Indemnified Party to resolve any such matter that involves any Person not a conflict between party hereto, or (ii) give written notice to the positions Buyer Indemnified Party of Sellers' intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the Indemnifying parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond during the period specified above to a notice claiming indemnification will be deemed an admission of responsibility therefor.
(c) Sellers shall have the right, at their sole expense, to control the defense of any claim brought by any third party (as to which indemnification is sought pursuant to this Section 10) with a single counsel of Sellers' choice, and shall have the right in their sole discretion to settle or otherwise protect against the imposition of liability with respect to such claim, in each case; provided, however, that:
(i) the Buyer Indemnified Party and the Indemnitee shall be entitled to participate in conducting the defense of such claim or and to employ counsel at its own expense to assist in the handling of such claim and shall have the right, but not the obligation, to assert any and all cross-claims and counterclaims it may have;
(ii) legitimate business considerations would require Sellers shall obtain the Indemnitee prior written approval of each Buyer Indemnified Party before entering into any settlement of any such claim or ceasing to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of against any such claim, be entitled if pursuant to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs or as a result of such participation (settlement or cessation, injunctive or other than the costs of providing witnesses or documents at the request of the Indemnifying equitable relief would be imposed against such Buyer Indemnified Party or if such settlement or cessation could, in response to legal process) following such assumption shall be at the expense reasonable opinion of Buyer, have a material adverse effect upon the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemniteebusiness conducted by Buyer on an ongoing basis, which consent will not approval may be unreasonably withheld; and provided, further, withheld in the Indemnifying Party may discretion of such Buyer Indemnified Party;
(iii) Sellers shall not consent to the entry of any judgment or enter into any settlement in respect of a claim which that does not include as an unconditional term thereof the giving by the each claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying each Buyer Indemnified Party of a release from all liability in respect of such claim.; and
(eiv) Both at the Indemnifying election of the Buyer Indemnified Party, Sellers and Buyer Indemnified Party and shall have joint control over the Indemnitee shall cooperate fully with one another in connection with the defense, compromise defense or settlement of any such claim, including without limitation making available each party to employ counsel at its own expense, to the extent such claim seeks an order, injunction or other equitable relief against such Buyer Indemnified Party or, to the extent such claim could, in the reasonable opinion of Buyer, have a material adverse effect upon the business conducted by Buyer on an ongoing basis. Each party hereto shall cooperate in good faith with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the other party in its defense of any such claim. In the event Sellers shall fail promptly to defend, contest or otherwise protect against the imposition of any such damages as to any such claim, the Buyer Indemnified Party shall have the right, but not the obligation, to defend, contest or assert any cross-claim or counter-claim or otherwise protect against such claim and may make any compromise or settlement thereof and recover and be indemnified for the entire cost thereof including, without limitation, from legal expenses, disbursements and all pertinent information and witnesses within its control at reasonable intervals during normal business hoursamounts paid as a result of such matter.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions Within thirty (30) days after receiving notice of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Partyan indemnification claim, the Indemnifying Party shall, by giving written notice thereof to the Indemnitee confirming Indemnified Person, either
(i) concede or deny liability for the Indemnifying Party’s obligation under this Section 5 claim in whole or in part, or (ii) in the case of a claim asserted by a Third Party (a “Third Party Claim”), advise that the matters set forth in the notice are, or will be, subject to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by itcontest or Proceedings not yet finally resolved. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of If the Indemnifying Party concedes liability in whole or in response part, it shall, within twenty (20) days of such concession, pay the amount of the claim to legal process) following the Indemnified Person to the extent of the liability conceded. Any such assumption payment shall be at made in immediately available funds equal to the expense amount of such claim so payable. If the Indemnitee. Upon assuming such defenseIndemnifying Party denies liability in whole or in part or advises that the matters set forth in the notice are, or will be, subject to contest or Proceedings not yet finally resolved, then the 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.
(ii) In the case of any Third Party Claim, if within thirty (30) days after receiving the notice described in Section 7.2(d), the Indemnifying Party shall have full right (i) gives written notice to enter into any compromise the Indemnified Person 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 Indemnifying Party disputes and intends to defend against such claim, liability or settlement which is dispositive of expense at the matter involved; provided Indemnifying Party's own cost and expense and (ii) provides assurance reasonably acceptable to such Indemnified Person that except such indemnification will be paid fully and promptly if required and such Indemnified Person will not incur cost or expense during the Proceeding, then counsel for the settlement defense shall be selected by the Indemnifying Party (subject to the consent of such Indemnified Person which consent shall not be unreasonably withheld) and such Indemnifying Party shall not be required to make any payment to the Indemnified Person with respect to such claim, liability or expense as long as the Indemnifying Party is conducting a claim good faith and diligent defense at its own expense; provided, that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle be entitled to assume the defense of a Third Party Claim to the extent that the Indemnified Person reasonably determines that it has defenses, claims or compromise positions that are unique, separate or distinct from the defenses, claims or positions that might be available to other Persons relating to such Third Party Claim (such as jurisdictional defenses).Notwithstanding the foregoing, in any claim in which any Indemnifying Party, on the one hand, and an Indemnified Person, on the other hand, is, or is reasonably likely to become, a party, such Indemnified Person shall have the right to employ separate counsel at the Indemnifying Parties' expense and to control its own defense of such claim if, in the reasonable opinion of counsel to such Indemnified Person, a conflict or potential conflict exists between the Indemnifying Party, on the one hand, and such Indemnified Person, on the other hand, that would make such separate representation advisable; provided, however, that in no event shall the Indemnifying Party be required to pay fees and expenses under this Article 7 for more than one firm of attorneys in any jurisdiction in any one legal action or group of related legal actions. If the Indemnifying Party assumes such defense in accordance with the preceding sentence, it shall not, without the prior written consent of the IndemniteeIndemnified Person, which consent will not be unreasonably withheld; and providedsettle, further, the Indemnifying Party may not compromise or consent to the entry of any judgment in any pending or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff threatened Third Party Claim relating to the Indemnitee of matters contemplated hereby (if any Indemnified Person is a release from all liability in respect of party thereto or has been actually threatened to be made a party thereto) unless such claim.
settlement, compromise or consent by its terms (cA) With respect to a claim as to which obligates the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred monetary amounts in connection with such defenseThird Party Claim and all such amounts are paid (B) includes an unconditional release of each Indemnified Person from all liability arising or that may arise out of such claim, action or proceeding, (C) does not involve any injunctive or other equitable relief which would be imposed and (D) does not provide for any finding or admission of a violation of law or violation of the rights of any Person by the Indemnified Person or any of its Affiliates. The Indemnifying Party shall be entitled keep such Indemnified Person apprised of the status of the claim, liability or expense and any resulting suit, proceeding or enforcement action, shall furnish such Indemnified Person with all documents and information that such Indemnified Person shall reasonably request and shall consult with such Indemnified Person prior to acting on major matters, including settlement discussions. Notwithstanding anything herein stated, such Indemnified Person shall at all times have the right to fully participate in such defense at its own expense directly or through counsel.
(iii) If no such notice of intent to dispute and defend is given by the Indemnifying Party, or if such diligent good faith defense is not being or ceases to be conducted, such Indemnified Person may undertake the defense of (with counsel selected by such Indemnified Person) and shall have the right to compromise or settle, such claim, but liability or expense (exercising reasonable business judgment) with the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will shall not be unreasonably withheld; provided, furtherhowever, that if in the reasonable judgment Indemnified Person settles, adjusts or compromises any such Third Party Claim without the consent of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to Party, such settlement or compromisesettlement, the Indemnitee may enter into such settlement or compromise and such settlement adjustment or compromise shall not be conclusive as toevidence of the amount of Losses incurred by the Indemnified Persons in connection with such Third Party Claim. If such claim, liability or expense is one that by its nature cannot be defended solely by the Indemnifying Party, then such Indemnified Person shall make available all information and assistance that the Indemnifying Party may reasonably request and shall cooperate with the Indemnifying Party in such defense. Notwithstanding anything to the contrary, in the event the Indemnifying Party assumes the defense of any Third Party Claim pursuant to Section 7.2(e)(ii) and the Indemnifying Party is successful on the merits pursuant to a final, non-appealable judgment, or otherwise the facts underlying such Third Party Claim are finally determined not to be used to establish, the existence or amount of the liability subject of the Indemnifying Party's obligations under this Article 7, then the Indemnified Person shall promptly reimburse the applicable Indemnifying Parties for all reasonable out of pocket Losses incurred defending such Third Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimClaim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Stock Purchase Agreement
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Any Indemnified Party promptly in writing describing such Loss, the amount thereof, if known, and the method asserting a right of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of indemnification provided for under this Agreement or other agreement, instrument or certificate delivered pursuant hereto Article IX in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee Third Party Claim shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event of the Third Party Claim within 30 ten business days following after receipt by such Indemnified Party of written notice of the Third Party Claim. As part of such third party claim or demand.
(b) Unless in notice, the reasonable judgment of Indemnitee (i) there is a conflict between the positions of Indemnified Party shall furnish the Indemnifying Party and with copies of any pleadings, correspondence or other documents relating thereto that are in the Indemnitee in conducting Indemnified Party's possession. The Indemnified Party's failure to notify the defense Indemnifying Part of any such claim or (ii) legitimate business considerations would require matter within the Indemnitee to defend or respond to such claim in a manner different from that recommended by time frame specified above shall not release the Indemnifying Party, in whole or in part, from its obligations under this Article IX except to the extent that the Indemnifying Party's ability to defend against such claim is actually prejudiced thereby. The Indemnifying Party agreed (and, at such time as the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation acknowledges its liability under this Section 5 Article IX with respect to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Third Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defenseClaim, the Indemnifying Party shall have full right the sole and exclusive right) to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderdefend against, the Indemnifying Party shall not settle or compromise any claim without such Third Party Claim at the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect expense of such claim.
(c) With respect to a claim as to which the Indemnifying Party. The Indemnified Party (i) does not shall have the right to assume (but not the defense under Section (bobligation) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claimclaim through counsel selected by it, but the cost of such participation which counsel shall be at its own expense. Notwithstanding the foregoing, Indemnified Party's expense to the Indemnitee shall not be required to defend any claim under this Section (c) unless extent that the Indemnifying Party confirms its obligation under this Section 5 to indemnify ahs assumed the Indemnitee in respect defense of such claim by written notice unless counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party due to an actual or potential conflict of interest, in which case such counsel shall be at the IndemniteeIndemnifying Party's expense. In no event shall the Indemnifying Parties be liable hereunder for the fees and expenses of more than one law firm or counsel representing the Indemnified Parties in connection with such Third Party Claim. The Indemnified Party shall cooperate with the Indemnifying Party and provide such assistance at the Indemnifying Party's expense as the Indemnifying Party may reasonably request in connection with the defense of such claim, including buy not limited to providing the Indemnifying Party access to and use of all relevant corporate records and making available its officers and employees for depositions, other pre-trial discovery and as witnesses at trial, if required. If the Indemnitee Indemnifying Party refuses to acknowledge its liability under this Article IX with respect to such Third Party Claim, then the Indemnified Party shall have the right to control the defense of such Third Party Claim and shall have the right, without the Indemnifying Party's consent, to settle or compromise such Third Party Claim.
(b) In the event of any claim for indemnification hereunder that is not required to defend any claim under a Third Party Claim, the immediately preceding sentence, it Indemnified Party shall owe no duties give reasonable notice thereof to the Indemnifying Party and shall afford the Indemnifying Party access to all relevant corporate records and other information in its possession relating thereto.
(c) If an Indemnifying Party becomes obligated to indemnify another party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; providedfor indemnification hereunder and the amount of liability with respect thereto shall have been finally determined, howeversubject to the limitations set forth in Section 9.4, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to shall pay such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving Indemnified Party in immediately available funds within ten days following receipt by the claimant or plaintiff to the Indemnifying Party of written demand from the Indemnified Party. The Purchaser shall have the right (but not the obligation) to satisfy any such claims for indemnification against a release from all liability Seller that have not been paid within such ten days by canceling Class A Units and Class B Units issued to such Seller hereunder, in respect of such claimeach case valued at $2.50 per Class A Unit and $1.50 per Class B Unit.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Business Combination Agreement (Seal Holdings Corp)
Procedure for Indemnification Claims. For purposes of this Agreement(a) If any Purchaser Indemnified Party, each of Seller and Buyer may be referred to as an “Indemnifying on the one hand, or Company Indemnified Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” on the other hand (the "Indemnified Party"), has a claim or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon potential claim or arising out receives notice of any claim, potential claim or the commencement of any action or proceeding which could give rise to an obligation on the part of the Company or Purchaser, as the case may be, to provide indemnification (the "Indemnifying Party") pursuant to Section 6.2 or 6.3, respectively, the Indemnified Party shall promptly give the Indemnifying Party written notice thereof (an "Indemnification Claim"); provided, however, that the failure to give such prompt notice shall not prevent any Indemnified Party from being indemnified hereunder for any Losses, except to the extent that the failure to so promptly notify the Indemnifying Party actually damages the Indemnifying Party.
(b) In the event of a claim, a potential claim or the commencement of any action or proceeding by any person not a third party which could give rise to this Agreementan obligation to provide indemnification pursuant to Sections 6.2 or 6.3, shall be as follows:
the Indemnified Party will give the Indemnifying Party prompt written notice thereof (a) If an Indemnitee believes the "Third Party Indemnification Claim"); provided, however, that it has suffered or incurred any Loss, such Indemnitee shall the failure of the Indemnified Party to so promptly notify the Indemnifying Party shall not prevent any Indemnified Party from being indemnified for any Losses, except to the extent that the failure to so promptly notify actually damages the Indemnifying Party. 18 18
(c) If the Indemnifying Party confirms in writing describing to the Indemnified Party within fifteen (15) days after receipt of the Third Party Indemnification Claim the Indemnifying Party's responsibility to indemnify and hold harmless the Indemnified Party therefor in accordance herewith and within such Loss15-day period demonstrates to the Indemnified Party's reasonable satisfaction that, as of such time, the Indemnifying Party has sufficient financial resources in order to indemnify for the full amount thereofof any potential liability in connection with such claim, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel, which counsel shall be reasonably satisfactory to the Indemnified Party, any such matter involving the asserted liability of the Indemnified Party. If the Indemnifying Party elects to compromise or defend any such asserted liability in accordance herewith, it shall within fifteen (15) days (or sooner, if knownthe nature of the asserted liability so requires) notify the Indemnified Party of its intent to do so, and the method Indemnified Party shall cooperate, at the expense of computation the Indemnifying Party, in the compromise of, or defense against, any such asserted liability; provided that (i) the Indemnified Party may, if it so desires, employ counsel at its own expense to assist in the handling of any such Lossthird party claim, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify (ii) the Indemnifying Party promptly in writing as soon as practicable but in shall keep the Indemnified Party advised of all material events with respect to any event within 30 days following receipt such third party claim, (iii) the Indemnifying Party shall obtain the prior written approval of notice the Indemnified Party (which approval may not be unreasonably withheld) before ceasing to defend against such third party claim or entering into any settlement, adjustment or compromise of such third party claim involving injunctive or similar equitable relief being asserted against any Indemnified Party or any of its Affiliates and (iv) no Indemnifying Party will, without the prior written consent of each Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending or threatened demand.
, claim, action or cause of action, suit or proceeding in respect of which indemnification may be sought hereunder (b) Unless in the reasonable judgment of Indemnitee (i) there whether or not any such Indemnified Party is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond party to such claim in a manner different demand, claim, action or cause of action, suit or proceeding), unless such settlement, compromise or consent includes an unconditional release of all such Indemnified Parties from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect all liability arising out of such claim, be entitled action, suit or proceeding. Notwithstanding anything contained herein to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereundercontrary, the Indemnifying Party shall not settle be entitled to have and the Indemnified Party shall have sole control over the defense, settlement, adjustment or compromise of any third party non-monetary claim that seeks an order, injunction or other equitable relief against any Indemnified Party or its Affiliates which, if successful, could materially interfere with the business, assets, liabilities, obligations, financial condition or results of operations of the Indemnified Party or any of its Affiliates. If the Indemnifying Party elects not to compromise or defend against the asserted liability, or fails to notify the Indemnified Party of its election as herein provided, the Indemnified Party may, at the Indemnifying Party's expense, pay, compromise or defend against such asserted liability.
(d) Notwithstanding Section 6.4(c) above, as between the Purchaser Indemnified Parties, on the one hand, and the Company, on the other hand, Purchaser shall have the right to control the conduct of any audit or administrative or court proceeding relating to Taxes of any Purchaser Indemnified Party. Purchaser shall keep the Company informed on a current basis of the progress of any such audit or proceeding the outcome of which could require the Company to indemnify any Purchaser Indemnified Party (including, without limitation, providing upon request copies of correspondence received from the IRS or any taxing authority, 19 19 domestic or foreign) and shall permit the Company to participate at its own expense in the preparation of any briefs, memoranda or other similar materials to be submitted in connection with such audit or proceeding. Purchaser shall not agree to compromise or settle any such audit or proceeding without the prior written consent of the IndemniteeCompany, which consent will shall not be unreasonably withheld; and provided, further, withheld or delayed. The Company shall reimburse the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from Purchaser Indemnified Parties for all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee Losses incurred in connection with any such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend audit or settle such claim without affecting its right to indemnity hereunderproceeding.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Asset Purchase Agreement (J P Morgan Partners Sbic LLC)
Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an “Underlying Claim”) has arisen entitling them to seek indemnification under Section 7 of this Agreement, each of Seller and Buyer may be referred such parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to as an the parties liable for such indemnification (the “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes Parties”) of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the “Indemnity Claim”); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 7.2(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties’ failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay Losses incurred by the Indemnitee Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable Losses made pursuant to this Agreement will be treated as adjustments to the Consideration.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 7.2(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
(e) Basket; Limitations on Indemnification; Calculation of Losses.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their The respective indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees the Company and Seller Indemnitees may Investor pursuant to Sections 14.2 and 14.3 shall be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The conditioned upon compliance by the Company and Investor with the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
: (a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the "Aggrieved Party") which could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable but in to assume the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demand.
proceeding (b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party and to notify the Indemnitee in conducting the defense Aggrieved Party of such claim or (ii) legitimate business considerations would require the Indemnitee its election to defend any such claim, action or respond proceeding within a reasonable time, but in no event more than 15 days after notice thereof "hall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shall, by giving notice thereof of its right to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of defend such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionaction or proceeding; provided, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehowever, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived its right to contest and defend against any claim without the prior written consent of the IndemniteeAggrieved Party for indemnification hereunder based upon or arising out of such claim, which consent will not be unreasonably withheldaction or proceeding; and provided, further, (b) If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with such claim, action or proceeding. The Aggrieved Party may not participate, at its expense, in the defense of such claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnified Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim.
, action or proceeding; (ec) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. If the Indemnifying Party, compromise or within ten days after notice shall have been given to it by the Aggrieved Party of the latter's intention to effect a settlement of any such claim, including without limitation making available action or proceeding, which notice shall describe with particularity the terms of any such proposed settlement, shall not deposit with an escrowee mutually satisfactory to the other all pertinent information Aggrieved Party and witnesses within its control at reasonable intervals during normal business hours.the Indemnifying Party a sum equivalent to the total amount demanded in such claim, action or proceeding or deliver to the Aggrieved Party a surety bond or an irrevocable letter of credit for such sum in form and substance reasonably satisfactory to the Aggrieved party, then the Aggrieved
Appears in 1 contract
Samples: Stock Purchase and Loan Agreement (Thinking Tools Inc)
Procedure for Indemnification Claims. For purposes of this AgreementThe following provisions shall apply to any Claim (as defined below) subject to indemnification, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” arising from or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claima suit, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered filed or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee instituted by a third partyparty against the City, the Indemnitee shall notify District and/or their respective agents, officers and employees (collectively the Indemnifying “Indemnified Party”) in which indemnification by the Developer is applicable: The applicable Indemnified Party promptly in writing as soon as practicable but in any event shall, within 30 thirty (30) days following receipt of being notified of such suit, action or proceeding against it, deliver written notice of such third party claim or demand.
(b) Unless in a Claim to the reasonable judgment of Indemnitee (i) there Developer, and, to the extent that indemnification is a conflict between required, the positions of the Indemnifying Party Developer will assume investigation and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require Claim, including the Indemnitee to defend or respond to such claim employment of counsel approved in a manner different from that recommended writing by the Indemnifying Party, Indemnified Party (provided that such approval by the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Indemnified Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; ). The Developer shall be relieved of any obligation to indemnify an Indemnified Party as to a Claim, to the extent that the Indemnified Party fails to deliver timely notice of a Claim and providedthe Developer thereby is prejudiced. The assumption of defense shall constitute an admission by the Developer of its indemnification obligation hereunder with respect to such Claim. The Indemnified Party will have the right, furtherat its expense, to employ separate counsel and to participate in the investigation and defense of any such Claim. Additionally, if the Indemnified Party is advised in a written opinion of counsel that is also addressed to the Developer that there may be legal defenses available to the Indemnified Party, which are adverse to or in conflict with those available to the Developer, or that the defenses of the Indemnified Party should be handled by separate counsel, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does Developer shall not have the right to assume or cause the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control assumption of the defense of and contest such claim with counsel chosen by it and the Indemnifying Party Indemnified Party, however, the Developer shall be obligated to pay all responsible for the reasonable attorneys’ fees and expenses of counsel retained by the Indemnitee incurred Indemnified Party in connection with assuming its own defense, provided such counsel is approved in writing by the Developer (further provided that such approval by the Developer shall not be unreasonably withheld). The Indemnified Party shall make available to the Developer or its representatives all records and other materials required by them and in the possession or under the control of the Indemnified Party, for the use of the Developer and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall Developer will not be required to defend liable for the settlement of any claim under this Section (c) unless Claim made by an Indemnified Party without the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by Developer’s prior written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any timeconsent; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable event of a settlement entered into with such consent or of any final judgment for a plaintiff in an Claim, and after all appeals have been taken and final orders or dismissals entered, the Developer will indemnify and hold the Indemnified Party harmless from and against any losses incurred by reason of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise of judgment. The Developer shall not be conclusive as to, or otherwise be used liable under this Agreement to establish, the existence or amount of the liability of the Indemnifying make any payment in connection with any Claim made against an Indemnified Party to the Indemnitee extent Indemnified Party has otherwise actually received payment (under any insurance policy or any third partyotherwise) of the amounts otherwise indemnifiable hereunder. The Indemnitee may not consent Following payment of a Claim by the Developer, all offsets and insurance proceeds delivered to entry of any judgment or enter into any settlement or compromise an Indemnified Party with respect such a Claim, except for payments made pursuant to a claim which does not include as an unconditional term thereof the giving City’s self-insurance program, shall be paid to the Developer, and any rights to payment associated with such offsets and insurance proceeds, shall be assigned by the claimant or plaintiff Indemnified Party to the Indemnifying Party of a release from all liability Developer. As used in respect of such claim.
this Section 6 the term “Claim” shall include, except as otherwise provided above, (ei) Both the Indemnifying Party actual losses, damages, penalties and the Indemnitee shall cooperate fully with one another settlements, as imposed in connection with the defenseany judgment, compromise awards or settlement of any claimagreement; and (ii) all reasonable costs and expenses, including without limitation making available reasonable attorney’s fees, of investigating or defending any demands, claims, suits, actions, causes of action, and proceedings, whether or not ultimately determined to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hoursbe valid.
Appears in 1 contract
Samples: Infrastructure Development and Acquisition Agreement
Procedure for Indemnification Claims. For purposes of this Agreement, each The respective indemnification obligations of Seller and Buyer may Purchaser pursuant to Section 19 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by Seller and Purchaser with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, .
(i) If at any time a claim shall be as follows:
made or threatened, or an action or proceeding shall be commenced or threatened, against a party hereto (athe "Aggrieved Party") If an Indemnitee believes that it has suffered or incurred any Losswhich could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, such Indemnitee the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable but in to assume the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demand.
proceeding (b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party and to notify the Indemnitee in conducting the defense Aggrieved Party of such claim or (ii) legitimate business considerations would require the Indemnitee its election to defend any such claim, action or respond proceeding within a reasonable time, but in no event more than fifteen days after notice thereof shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shall, by giving notice thereof of its right to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of defend such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionaction or proceeding; provided, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehowever, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived its right to contest and defend against any claim without the prior written consent of the IndemniteeAggrieved Party for indemnification hereunder based upon or arising out of such claim, which consent will not be unreasonably withheld; and provided, further, action or proceeding.
(ii) If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with such claim, action or proceeding. The Aggrieved Party may not participate, at its expense, in the defense of such claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnified Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding, except in either event with the prior consent of the Aggrieved Party.
(eiii) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense.
(iv) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, compromise records, officers, employees or settlement agents, as required by the terms of any claimsubparagraphs (ii) and (iii), respectively, of this Section 19.F., the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses including without limitation making available legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Alternative Living Services Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) Buyer Indemnified Parties and Company Indemnified Parties are referred to collectively in this Section 8.5 as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VIII are referred to herein as "Indemnifying Parties".
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefor.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Share Exchange Agreement (Micro Interconnect Technology Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any Purchaser Indemnified Party desires to make a claim against either Seller under subparagraph 12(a). in connection with any Claim at any time instituted against, or demand in respect of made upon, the Purchaser Indemnified Party by any third party for which an Indemnitee the Purchaser Indemnified Party may seek recovery of indemnification hereunder (a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party"Third Party Claim"), the Indemnitee Purchaser Indemnified Party shall promptly notify each Seller of such Third Party Claim and of the Purchaser Indemnified Party's claim of indemnification with respect thereto; provided, however, that no reasonable delay on the part of the Purchaser Indemnified Party in notifying either Seller shall relieve the Seller from any obligation hereunder. Each Seller shall have thirty (30) days after receipt of such notice to notify the Indemnifying Purchaser Indemnified Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting if it has elected to assume the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Third Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by itClaim. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right If either Seller timely elects to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defenseof such Third Party Claim, the Indemnitee Seller shall assume be entitled at its own expense to conduct and control the defense and settlement of and contest such claim with Third Party Claim through counsel chosen by it and of its own choosing, provided that the Indemnifying Purchaser Indemnified Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to may participate in the defense of such claim, but the cost of such participation shall be Third Party Claim with its or their own counsel at its or their own expense. Notwithstanding , and provided further that the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes Seller must conduct the defense of a claim pursuant the Third Party Claim actively and diligently in order to Section (c) abovepreserve its rights in this regard. If both Sellers timely elect to assume the defense of such Third Party Claim, the Indemnitee may compromise or settle any claim against it Sellers shall be entitled at any time; providedtheir own expense to jointly conduct and control the defense and settlement of such Third Party Claim through counsel of their own choosing, however, provided that the Indemnitee Purchaser Indemnified Party may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, and provided further that the Sellers must conduct the defense of the Third Party Claim actively and diligently in order to preserve their rights in this regard. If neither Seller notifies the Purchaser Indemnified Party within thirty (30) days after receipt of notice of a Third Party Claim, the Purchaser Indemnified Party shall be entitled to assume the defense of such Third Party Claim (and the Purchaser Indemnified Party need not settle consult with, or compromise any claim without obtain the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if Sellers) and in the reasonable judgment Purchaser Indemnified Party's sole discretion prosecute, litigate, settle and perform such other actions as the Purchaser Indemnified Party may deem necessary in order to fully protect the Purchaser Indemnified Party's interests, and each Seller shall remain responsible for indemnification of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimPurchaser Indemnified Party.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cross Continent Auto Retailers Inc M&l)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, Purchaser Indemnified Parties and Seller Indemnified Parties are referred to herein as "Indemnified Parties," and the method of computation of such Loss, all with reasonable particularity Persons from whom indemnification may be sought pursuant to Sections 8.2 and containing a reference 8.3 are referred to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the herein as "Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demandParties."
(b) Unless If at any time an Indemnified Party determines to assert a right to indemnification hereunder, the Indemnified Party will give to the Indemnifying Party written notice of such determination.
(c) Within 10 days after receipt of any notice referred to in paragraph (b) above, the reasonable judgment of Indemnitee Indemnifying Party will (i) there acknowledge in writing its responsibility for all or part of such matter for which indemnification is a conflict between sought under this Article VIII, and pay or otherwise satisfy the positions portion of such matter as to which responsibility is acknowledged or take such other action as is satisfactory to the Indemnified Party to provide reasonable assurances to the Purchaser Indemnified Parties for the performance of its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.
(d) Each party hereto shall cooperate in good faith with, make its relevant files and records available for inspection and copying by, and make its employees available and otherwise render reasonable assistance to, the other parties in their defense of any such claims. Each Indemnifying Party shall have the right, at its sole expense, to control the defense of any claim brought by any third party (as to which indemnification is sought pursuant to this Article VIII) with counsel of such Indemnifying Party's choice that is reasonably satisfactory to the Indemnified Party, and shall have the right to settle or otherwise protect against the imposition of liability with respect to such claim, in each case if such Indemnifying Party shall have taken the action described in clause (i) of the Indemnifying Party and first sentence of Section 8.4(c) with respect to such claim; provided, however, that:
(i) the Indemnitee Indemnified Parties shall be entitled to participate in conducting the defense of such claim or and to employ counsel at their own expense to assist in the handling of such claim and shall have the right, but not the obligation, to assert any and all cross-claims and counterclaims they may have;
(ii) legitimate business considerations would require such Indemnifying Party shall obtain the Indemnitee prior written approval of each Indemnified Party, which approval shall not be unreasonably withheld, before entering into any settlement of any such claim or ceasing to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of against any such claim, be entitled if pursuant to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs or as a result of such participation (settlement or cessation, injunctive or other than the costs of providing witnesses or documents at the request of the Indemnifying equitable relief would be imposed against such Indemnified Party or (if such Indemnified Party is a Purchaser Indemnified Party) such settlement or cessation could, in response to legal processthe reasonable opinion of Purchaser, have a material adverse effect upon the Business as conducted by Purchaser (or its designee);
(iii) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or enter into any settlement in respect of a claim which that does not include as an unconditional term thereof the giving by the each claimant or plaintiff to each Indemnified Party named (or reasonably likely to be named) as a potential party to the Indemnitee relevant action or proceeding of a release from all liability in respect of such claim.;
(civ) With respect to a claim as to which at the election of the Indemnified Party, such Indemnifying Party and Indemnified Party shall have joint control over the defense or settlement of any such claim, each party to employ counsel at its own expense, to the extent such claim seeks an order, injunction or other equitable relief against such Indemnified Party or, if such Indemnified Party is a Purchaser Indemnified Party, to the extent such claim could, in the reasonable opinion of Purchaser, have a material adverse effect upon the business of Purchaser; and
(iv) does not the Purchaser Indemnified Parties shall control the defense of, and have the right to assume settle or otherwise protect against the defense under imposition of liability with respect to, any such claim based upon, resulting from or arising out of breaches or inaccuracies of representations, warranties or statements contained in Section 3.18 hereof, or made pursuant to Section 8.2(i)(3), in each case to the extent relating to the Owned Property, provided that (bx) or (ii) Purchaser Indemnified Parties shall obtain the prior written approval of each Indemnifying Party, which approval shall not have exercised its right to assume the defensebe unreasonably withheld, the Indemnitee shall assume and control the defense before entering into any settlement of and contest any such claim with counsel chosen by it and (y) all Remedial Actions that are the subject of such an indemnification claim shall be performed in a commercially reasonable manner. In the event the Indemnifying Party shall be obligated fail to pay all reasonable attorneys’ fees and expenses defend, contest or otherwise protect against the imposition of the Indemnitee incurred in connection with any such defense. The Indemnifying Party shall be entitled damages as to participate in the defense of any such claim, the Indemnified Party shall have the right, but not the cost of such participation shall be at its own expense. Notwithstanding the foregoingobligation, the Indemnitee shall not be required to defend defend, contest or assert any cross-claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to or counterclaim or otherwise protect against such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may make any compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not settlement thereof and recover from and be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced indemnified by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to for the entire reasonable cost thereof including, without limitation, from legal expenses, disbursements and all amounts paid as a result of such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of matter. If the Indemnifying Party to does not take the Indemnitee or any third party. The Indemnitee may not consent to entry action described in clause (i) of any judgment or enter into any settlement or compromise the first sentence of Section 8.4(c) with respect to a claim which does not include as an unconditional term thereof claim, the giving by Indemnified Party shall, without limitation of its rights under this Article VIII, retain sole control over the claimant defense or plaintiff to the Indemnifying Party of a release from all liability in respect settlement of such claim.
(e) Both The rights of the Indemnifying Party Indemnified Parties under this Article VIII are in addition to all other rights or remedies the Indemnified Parties may have under this Agreement or otherwise and will continue in effect notwithstanding any statute of limitations that would otherwise bar the Indemnitee exercise of such rights, provided that the rights of the parties under clauses (i)(1)(x) of the first sentences of each Sections 8.2 and 8.3 shall cooperate fully with one another be the exclusive remedy of the Indemnified Parties for breaches of representations and warranties contained in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information Articles III and witnesses within its control at reasonable intervals during normal business hoursIV herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Semx Corp)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Any Indemnified Party promptly in writing describing such Loss, the amount thereof, if known, and the method asserting a right of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of indemnification provided for under this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee Third Party Claim shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event of the Third Party Claim within 30 ten business days following after receipt by such Indemnified Party of written notice of the Third Party Claim. As part of such third party claim or demand.
(b) Unless in notice, the reasonable judgment of Indemnitee (i) there is a conflict between the positions of Indemnified Party shall furnish the Indemnifying Party and with copies of any pleadings, correspondence or other documents relating thereto that are in the Indemnitee in conducting Indemnified Party's possession. The Indemnified Party's failure to notify the defense Indemnifying Party of any such claim or (ii) legitimate business considerations would require matter within the Indemnitee to defend or respond to such claim in a manner different from that recommended by time frame specified above shall not release the Indemnifying Party, in whole or in part, from its obligations under this Section 7 except to the extent that the Indemnifying Party's ability to defend against such claim is actually prejudiced thereby. The Indemnifying Party agrees (and, at such time as the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation acknowledges its liability under this Section 5 7 with respect to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Third Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defenseClaim, the Indemnifying Party shall have full right the sole and exclusive right) to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderdefend against, the Indemnifying Party shall not settle or compromise any claim without such Third Party Claim at the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect expense of such claim.
(c) With respect to a claim as to which the Indemnifying Party. The Indemnified Party (i) does not shall have the right to assume (but not the defense under Section (bobligation) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claimclaim through counsel selected by it, but the cost of such participation which counsel shall be at its own the Indemnified Party's expense to the extent that the Indemnifying Party has assumed the defense of such claim unless counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party due to an actual or potential conflict of interest, in which case such counsel shall be at the Indemnifying Party's expense. Notwithstanding The Indemnified Party shall cooperate with the foregoingIndemnifying Party and provide such assistance at the Indemnifying Party's expense as the Indemnifying Party may reasonably request in connection with the defense of such claim, including but not limited to providing the Indemnitee shall not be required Indemnifying Party access to defend any claim and use of all relevant corporate records and making available its officers and employees for depositions, other pre-trial discovery and as witnesses at trial, if required. If the Indemnifying Party refuses to acknowledge its liability under this Section 7 with respect to such Third Party Claim, then the Indemnified Party shall have the right to control the defense of such Third Party Claim and shall have the right, without the Indemnifying Party's consent, to settle or compromise such Third Party Claim.
(b) Any Third Party Claim made jointly against a corporate Indemnified Party and any employee, director, officer or agent of such corporate Indemnified Party which is otherwise properly presented by an Indemnified Party within the purview of this Section 7 shall be deemed to be included in the Indemnifying Party's defense and indemnification responsibilities under this Section 7.
(c) unless In the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect event of such any claim by written notice to the Indemnitee. If the Indemnitee for indemnification hereunder that is not required to defend any claim under a Third Party Claim, the immediately preceding sentence, it Indemnified Party shall owe no duties give reasonable notice thereof to the Indemnifying Party with respect and shall afford the Indemnifying Party access to such claim all relevant corporate records and may defend, fail to defend or settle such claim without affecting other information in its right to indemnity hereunderpossession relating thereto.
(d) If the Indemnitee assumes the defense of a claim pursuant any party becomes obligated to Section (c) above, the Indemnitee may compromise or settle indemnify another party with respect to any claim against it at any time; providedfor indemnification hereunder and the amount of liability with respect thereto shall have been finally determined, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to shall pay such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving Indemnified Party in immediately available funds within ten days following written demand by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimIndemnified Party.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered the Target or incurred any LossTarget Shareholders or the Purchaser wish to assert a claim against the other party under this ARTICLE 8, such Indemnitee party shall so notify give written notice of such claim to the Indemnifying Party promptly other party, specifying in writing describing such Lossreasonable detail the nature of the Purchaser's Damages or the Target's Damages for which indemnification is claimed, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions Section or Sections of this Agreement upon which such claim is based and the amount claimed in respect thereof ("Notice of Claim"). Any such Notice of Claim must be submitted prior to the third anniversary of the Effective Date.
(b) The Target and Target Shareholders and the Purchaser shall consult and use their best efforts to cooperate in determining whether a Notice of Claim is entitled to indemnity pursuant to this ARTICLE 8. When the Parties determine that a Notice of Claim is entitled to indemnity, by agreement or otherwise, the indemnifying party shall pay to the indemnified party the amount of the claim by certified check or other agreementmeans which is acceptable to the indemnified party.
(c) If any legal proceeding by a third party shall be instituted, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand made, against any indemnified party in respect of which an Indemnitee indemnifying party may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third partyliable hereunder, the Indemnitee indemnified party shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving give prompt written notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by itindemnifying party. The Indemnitee shall be entitled to participate therein after such assumptionindemnifying party, but at its expense, and, with the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemniteeindemnified party, which consent will not be unreasonably withheld; may participate in any such legal proceeding and provided, further, the Indemnifying Party may not consent to entry negotiations and settlement of any judgment such claim or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not demand. The indemnifying party shall have the right absolute right, in its sole discretion and without the consent of the indemnified party, to assume settle any such legal proceeding, claim or demand so long as all obligations and liabilities of the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it indemnified party are extinguished thereby and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses interests of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall indemnified party are not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunderotherwise prejudiced.
(d) If the Indemnitee assumes amount of Purchaser's Damages or the defense of a claim pursuant Target's Damages paid shall, at any time subsequent to Section (c) abovesuch payment, be reduced by any recovery, settlement or otherwise, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of such reduction, less any expense incurred by the liability of the Indemnifying Party party receiving such recovery in connection therewith, shall be promptly repaid to the Indemnitee or any third indemnifying party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller Seller, Xx. Xxxxxxxx and Buyer may be referred to as an “"Indemnifying Party” " in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “"Indemnitee” " or collectively as “"Indemnitees.” " The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s 's obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ ' fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stratus Services Group Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee officer or senior employee of Acquiror or the Surviving Corporation reasonably believes it is entitled to Damages under this Section 9, it shall deliver to the Securityholders’ Agent, on or before the Escrow Release Date, a certificate signed by such officer or senior employee (an “Officer’s Certificate”) stating that it has suffered or incurred any LossDamages exist with respect to the indemnification obligations of the Stockholders set forth in Section 9.2, and specifying in reasonable detail the individual items of such Indemnitee shall Damages included in the amount so notify the Indemnifying Party promptly in writing describing such Lossstated, the amount thereofdate each such item was paid, if knownor properly accrued or arose, and the method nature of computation the misrepresentation, breach of such Losswarranty, all with reasonable particularity and containing a reference covenant or claim to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 item is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demandrelated.
(b) Unless The Securityholders’ Agent shall have a period of thirty (30) days from and after delivery of any Officer’s Certificate to deliver to Acquiror a response, in which the reasonable judgment of Indemnitee Securityholders’ Agent shall: (i) there agree that Acquiror is a conflict between the positions entitled to receive all of the Indemnifying Party and requested Damages (in which case the Indemnitee in conducting response shall be accompanied by written notice executed by the defense of such claim Securityholders’ Agent instructing the Escrow Agent to disburse the requested Damages to Acquiror) or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from dispute that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be Acquiror is entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but receive the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claimrequested Damages.
(c) With If the Securityholders’ Agent disputes any claim or claims made in any Officer’s Certificate, Acquiror shall have thirty (30) days to respond in a written statement to the objection of the Securityholders’ Agent. If after such thirty (30) day period there remains a dispute as to any claims, the Securityholders’ Agent and Acquiror shall attempt in good faith for thirty (30) days to agree upon the rights of the respective parties with respect to each of such claims (the “Claims Period”). If the Securityholders’ Agent and Acquiror should so agree, a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) memorandum setting forth such agreement shall not have exercised its right to assume the defense, the Indemnitee shall assume be prepared and control the defense of and contest such claim with counsel chosen signed by it Acquiror and the Indemnifying Party Securityholders’ Agent and shall be obligated delivered to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defenseEscrow Agent. The Indemnifying Party Escrow Agent shall be entitled to participate rely on any such memorandum for the release of any Escrow Amount to Acquiror in accordance with the defense terms of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise memorandum and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimEscrow Agreement.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Merger Agreement (Nuvasive Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred at any Loss, such Indemnitee shall so notify the Indemnifying time a HOMI Indemnified Party promptly in writing describing such Lossdetermines to assert a right to indemnification hereunder, the amount thereof, if known, HOMI Indemnified Party shall give to Industries and the method of computation of such Loss, all with PURCHASERS written notice describing the matter for which indemnification is sought in reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that any a demand or claim for indemnification is made hereunder with respect to a matter the amount or demand in respect extent of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against not yet known or sought to be collected from such Indemnitee by a third partycertain, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demanddemand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter.
(b) Unless Within 15 days after receipt of the notice referred to in clause (b) above, Industries and the reasonable judgment of Indemnitee PURCHASERS shall (i) there if true, acknowledge in writing their respective responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the HOMI Indemnified Party to resolve any such matter that involves anyone not a conflict between party hereto, or (ii) give written notice to the positions HOMI Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the Indemnifying parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(c) In the event that the HOMI Indemnified Party is required to expend any amount in enforcing his, her or its rights of indemnification hereunder, Industries and the Indemnitee PURCHASERS will, jointly and severally, promptly upon request, pay such amounts to the HOMI Indemnified Party if indemnification is required to be made hereunder.
(e) Industries and each PURCHASER shall have the right to employ separate counsel in conducting any action or claim which is brought against any HOMI Indemnified Party in respect of which indemnity may be sought from it, and to participate in the defense of such action or claim, if Industries or such PURCHASER confirms in writing their responsibility for such action or claim; provided, however, that (i) PURCHASERS and Industries, or the HOMI Indemnified Party or Parties, as per their mutual agreement, shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of Industries and the Indemnitee. Upon assuming PURCHASERS, as applicable; and (iii) PURCHASERS and Industries may in no event settle such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, relevant HOMI Indemnified Party unless such settlement provides for a full release of the Indemnifying relevant HOMI Indemnified Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Agreement (Hotel Outsource Management International Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it “Underlying Claim”) has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 10 of the Agreement, such Indemnitee parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to the parties liable for such indemnification (the “Indemnifying Parties”) of the right to indemnification in reasonable detail of the circumstances of the Underlying Claim (the “Indemnity Claim”); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossmaterial prejudice to the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 10.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties’ failure to defend provide such a written response within such thirty (30) day period shall be deemed to be a rejection of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 10 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 7.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
(e) Basket; Limitations on Indemnification; Calculation of Losses.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered Any claim for indemnification under Sections 11.2 or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly 11.3 will be made in writing describing such Loss, the amount thereof, if known, accordance with this Section 11.4. Purchaser Indemnified Parties and Seller Indemnified Parties are referred to herein as “Indemnified Parties,” and the method of computation of such Loss, all with reasonable particularity Persons from whom indemnification may be sought pursuant to Sections 11.2 and containing a reference 11.3 are referred to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the herein as “Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demandParties.”
(b) Unless In the case of any claim for indemnification under Sections 11.2 or 11.3 arising from a claim of a third Person, the Indemnified Party will give the Indemnifying Party notice of such claim within twenty (20) days following the Indemnified Party’s receipt of such claim, provided that the failure to notify or a delay in notifying an Indemnifying Party as provided in this sentence will not relieve the reasonable judgment Indemnifying Party of Indemnitee its obligations pursuant to Section 11.2 or 11.3, as applicable, except to the extent the Indemnifying Party is prejudiced by such failure or delay. If at any time an Indemnified Party determines to assert a right to indemnification hereunder in respect of any other matter, the Indemnified Party will give to the Indemnifying Party written notice of such determination.
(c) Within fifteen (15) days after receipt of any notice referred to in paragraph (b) above, the Indemnifying Party will, either, (i) there acknowledge in writing its responsibility in accordance with the terms of this Agreement for all or part of such matter for which indemnification is a conflict between sought under this Article XI, and pay or otherwise satisfy the positions portion of such matter as to which responsibility is acknowledged or take such other action as is satisfactory to the Indemnified Party to provide security for the performance of its obligations hereunder and/or (ii) give written notice to the Indemnified Party of its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.
(d) Each party hereto shall cooperate in good faith with, make its relevant files and records available for inspection and copying by, and make its employees reasonably available and otherwise render reasonable assistance to, the other party in its defense of any such claims. Each Indemnifying Party shall have the right, at its sole expense, to control the defense of any claim brought by any third Person (as to which indemnification is sought pursuant to this Article XI) with counsel of such Indemnifying Party’s choice that is reasonably satisfactory to the Indemnified Party, and shall have the right to settle or otherwise protect against the imposition of liability with respect to such claim, in each case if such Indemnifying Party shall have taken the action described in clause (i) of the Indemnifying Party and first sentence of Section 11.4(c) with respect to such claim; provided, however, that:
(i) the Indemnitee Indemnified Parties shall be entitled to participate in conducting the defense of such claim or and to employ counsel at their own expense to assist in the handling of such claim and shall have the right, but not the obligation, to assert any and all cross-claims and counterclaims they may have;
(ii) legitimate business considerations would require such Indemnifying Party shall obtain the Indemnitee prior written approval of each Indemnified Party before entering into any settlement of any such claim or ceasing to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of against any such claim, be entitled if pursuant to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs or as a result of such participation (settlement or cessation, injunctive or other than the costs of providing witnesses or documents at the request of the Indemnifying equitable relief would be imposed against such Indemnified Party or in response its Affiliates or (if such Indemnified Party is a Purchaser Indemnified Party) such settlement or cessation could reasonably be expected to legal processhave a material adverse effect upon the Business, or;
(iii) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or enter into any settlement in respect of a claim which that does not include as an unconditional term thereof the giving by the each claimant or plaintiff to the Indemnitee each Indemnified Party of a release from all liability Liability in respect of such claim; and
(iv) at the election of the Indemnified Party, such Indemnifying Party and Indemnified Party shall have joint control over the defense or settlement of any such claim, each party to employ counsel at its own expense, to the extent such claim seeks an order, injunction or other equitable relief against such Indemnified Party or, if such Indemnified Party is a Purchaser Indemnified Party, to the extent such claim (x) could reasonably be expected to have an adverse effect upon the business of Purchaser, its Affiliates or the Business or (y) involves Liability of Purchaser or any Affiliates for Taxes.
(e) In the event the Indemnifying Party shall fail to defend, contest or otherwise protect against the imposition of any such damages as to any such claim, the Indemnified Party shall have the right, but not the obligation, to defend, contest or assert any cross claim or counterclaim or otherwise protect against such claim and may make any compromise or settlement thereof and recover from and be indemnified by the Indemnifying Party for the entire reasonable cost thereof, including from legal expenses, disbursements and all amounts paid as a result of such matter. If the Indemnifying Party does not take the action described in clause (i) of the first sentence of Section 11.4(c) with respect to a claim, the Indemnified Party shall, without limitation of its rights under this Article XI, retain sole control over the defense or settlement of such claim.
(cf) With respect to a claim as to which The parties acknowledge and agree that the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party foregoing indemnification provisions in this Article XI shall be obligated to pay all reasonable attorneys’ fees and expenses the exclusive remedy of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party parties with respect to such claim and may defend, fail to defend (x) any breach or settle such claim without affecting its right to indemnity hereunder.
(d) If inaccuracy of any of the Indemnitee assumes the defense of a claim representations or warranties contained in or made pursuant to Section this Agreement or (cy) above, the Indemnitee may compromise any Losses or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle Liabilities related to Environmental Liabilities or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise Remedial Actions with respect to a claim which does not include as an unconditional term thereof the giving by Owned Real Property, except that nothing in this Agreement shall be deemed to limit any party’s rights or remedies in the claimant event that the other party has committed fraud or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another other intentional acts in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hourstherewith.
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Procedure for Indemnification Claims. For purposes of this Agreement, each The respective indemnification obligations of Seller and Buyer may pursuant to Sections 10.2 and 10.4 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by Seller and Buyer with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, ;
(A) If at any time a claim shall be as follows:
made or threatened, or an action or proceeding shall be commenced or threatened, against a party hereto (athe “Aggrieved Party”) If an Indemnitee believes that it has suffered or incurred any Losswhich could result in liability of the other party (the “Indemnifying Party”) under its indemnification obligations hereunder, such Indemnitee the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable but in to assume the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demand.
proceeding (b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party and to notify the Indemnitee in conducting the defense Aggrieved Party of such claim or (ii) legitimate business considerations would require the Indemnitee its election to defend any such claim, action or respond proceeding within a reasonable time, but in no event more that fifteen days after notice thereof shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shall, by giving notice thereof of its right to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of defend such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionaction or proceeding; provided, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehowever, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived its right to contest and defend against any claim without the prior written consent of the IndemniteeAggrieved Party for Indemnification hereunder based upon or arising out of such claim, which consent will not be unreasonably withheld; and provided, further, action or proceeding.
(B) If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgement or award rendered in connection with such claim, action or proceeding. The Aggrieved Party may not participate, at its expense, in the defense of such claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnified Party all books and records and such officers, employee and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bulova Technologies Group, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, MNG Indemnified Parties and BNA Indemnified Parties are referred to herein as "Indemnified Parties," and the method of computation of such Loss, all with reasonable particularity and containing a reference Persons from whom indemnification may be sought pursuant to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought are referred to be collected from such Indemnitee by a third party, the Indemnitee shall notify the herein as "Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demandParties."
(b) Unless If at any time an Indemnified Party determines to assert a right to indemnification hereunder, the Indemnified Party will give to the Indemnifying Party written notice of such determination.
(c) Within ten (10) days after receipt of any notice referred to in paragraph (b) above, the reasonable judgment of Indemnitee Indemnifying Party will (i) there acknowledge in writing its responsibility for all or part of such matter for which indemnification is a conflict between sought under this Article XI, and pay or otherwise satisfy the positions portion of such matter as to which responsibility is acknowledged or take such other action as is satisfactory to the Indemnified Party to provide reasonable assurances to the Indemnified Parties for the performance of its obligations hereunder, and/or (ii) give written notice to the Indemnified Party of its intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties will negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter.
(d) Each party hereto shall cooperate in good faith with, make its relevant files and records available for inspection and copying by, and make its employees available and otherwise render reasonable assistance to, the other parties in their defense of any such claims. Each Indemnifying Party shall have the right, at its sole expense, to control the defense of any claim brought by any third party (as to which indemnification is sought pursuant to this Article XI) with counsel of such Indemnifying Party's choice that is reasonably satisfactory to the Indemnified Party, and shall have the right to settle or otherwise protect against the imposition of liability with respect to such claim, in each case if such Indemnifying Party shall have taken the action described in clause (i) of the Indemnifying Party and first sentence of Section 10.4(c) with respect to such claim; provided, however, that:
(i) the Indemnitee Indemnified Parties shall be entitled to participate in conducting the defense of such claim or and to employ counsel at their own expense to assist in the handling of such claim and shall have the right, but not the obligation, to assert any and all cross-claims and counterclaims they may have;
(ii) legitimate business considerations would require such Indemnifying Party shall obtain the Indemnitee prior written approval of each Indemnified Party before entering into any settlement of any such claim or ceasing to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of against any such claim, be entitled if pursuant to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs or as a result of such participation settlement or cessation, injunctive or other equitable relief would be imposed against such Indemnified Party or (other than if such Indemnified Party is a MNG Indemnified Party) such settlement or cessation could, in the costs reasonable opinion of providing witnesses or documents at MNG, have an adverse effect upon the request business of the Indemnifying Party or in response to legal processYork Daily Record;
(iii) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or enter into any settlement in respect of a claim which that does not include as an unconditional term thereof the giving by the each claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying each Indemnified Party of a release from all liability in respect of such claim.;
(eiv) Both at the election of the Indemnified Party, such Indemnifying Party and Indemnified Party shall have joint control over the Indemnitee shall cooperate fully with one another in connection with the defense, compromise defense or settlement of any such claim, including without limitation making available each party to employ counsel at its own expense, to the extent such claim seeks an order, injunction or other equitable relief against such Indemnified Party or, if such Indemnified Party is a MNG Indemnified Party, to the extent such claim could, in the reasonable opinion of MNG, have an adverse effect upon the business of the York Daily Record; and
(v) with respect claim for indemnification pursuant to Section 10.2(2), the MNG Indemnified Parties shall have the right, at their sole expense, to control the defense of, and have the right to settle or otherwise protect against the imposition of liability with respect to, any such claim; provided, however, that (x) the MNG Indemnified Parties shall obtain the prior written approval of BNA not to be unreasonably withheld before entering into any settlement of any such claim (and the refusal to contribute to any proposed settlement or otherwise expend funds or assume, admit, or accept liability shall not be considered unreasonable) and (y) to the extent that the MNG Indemnified Parties have not asserted their rights to assume the defense of any such claim pursuant to this Section 10.4(d)(v), BNA shall obtain the prior written approval of MNG before entering into any settlement of any such claim unless such settlement is purely monetary, with no continuing adverse effect on the business of the York Daily Record, and provides an unconditional release of the MNG Indemnified Parties with respect to such claim and does not require an admission of liability, wrongdoing or fault by any MNG Indemnified Party. Except for a claim for indemnification pursuant to Section 10.2(2) in which MNG Indemnified Parties have asserted their rights under Section 10.4(d)(v) above, in the event the Indemnifying Party shall, in the reasonable judgment of the Indemnified Party, fail adequately and diligently to defend, contest or otherwise protect against the imposition of any such damages as to any such claim, the Indemnified Party shall have the right, but not the obligation, to defend, contest or assert any cross-claim or counterclaim or otherwise protect against such claim and may make any compromise or settlement thereof and recover from and be indemnified by the Indemnifying Party for the entire reasonable cost thereof including, without limitation, from legal expenses, disbursements and all pertinent information and witnesses within its control at reasonable intervals during normal business hours.amounts paid as a result of such matter. If the Indemnifying Party does not take the action described in clause (i) of the first sentence of
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller All claims for indemnification by any party (the "Indemnified Party") will be asserted and Buyer may be referred to resolved as follows:
15.4.1 In order for an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures Indemnified Party to be followed with entitled to any indemnification provided for herein in respect to indemnification claims based upon or of, arising out of any claim, action or proceeding involving a claim or demand made by any person Person not a party to this AgreementAgreement against the Indemnified Party (a "Third Party Claim"), the Indemnified Party shall deliver a notice (a "Claim Notice") to the other party (the "Indemnifying Party") promptly after receipt by such Indemnified Party of written notice of the Third Party Claim, but in no event after the expiration of the applicable statute of limitations period. Such notice shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify given in accordance with the Indemnifying Party promptly notice provisions set forth in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand17.5 [Notice] hereof.
(b) Unless in the reasonable judgment of Indemnitee (i) there 15.4.2 If a Third Party Claim is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying made against an Indemnified Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claimthereof and, but the cost of such participation shall be at its own expense. Notwithstanding the foregoingif it so chooses, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes assume the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of thereof with counsel selected by the Indemnifying Party, which consent will counsel must be reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be unreasonably withheld; providedliable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, furtherbut shall continue to pay for any expenses of investigation or any Loss suffered. If the Indemnifying Party assumes such defense, that if the Indemnified Party shall have the right to participate in the reasonable judgment defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If (I) the Indemnifying Party shall not assume the defense of a Third Party claim with counsel satisfactory to the Indemnitee it would Indemnified Party within five business days of any Claim Notice, or (ii) legal counsel for the Indemnified Party notifies the Indemnifying Party that there are or may be materially harmed legal defenses available to the Indemnifying Party or otherwise prejudiced by not entering into a proposed settlement to other Indemnified Parties which are different from or compromise additional to those available to the Indemnified Party, which, if the Indemnified Party and the Indemnifying Party withholds consent were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such settlement Indemnified Party, or compromise(iii) if the Indemnifying Party shall assume the defense of a Third Party Claim and fail to diligently prosecute such defense, then in each such case the Indemnified Party, by notice to the Indemnifying Party, may employ its own counsel and control the defense of the Third Party Claim and the Indemnifying Party shall be liable for the reasonable fees, charges and disbursements of counsel employed by the Indemnified Party, and the Indemnified Party shall be promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the Indemnifying Party or the Indemnified Party control the defense of any Third Party Claim, the Indemnitee may enter into parties hereto shall cooperate in the defense thereof. Such cooperation shall include the retention and provision to the counsel of the controlling party of records and information which are reasonably relevant to such settlement Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation or any material provided hereunder. The Indemnifying Party shall have the right to settle, compromise or discharge a Third Party Claim (other than any such Third Party Claim in which criminal conduct is alleged) without the Indemnified Party's consent if such settlement, compromise or discharge (I) constitutes a complete and unconditional discharge and release of the Indemnified Party, and (ii) provides for no relief other than the payment of monetary damage and such settlement or compromise monetary damages are paid in full by the Indemnifying Party.
15.4.3 In the event any Indemnified Party should have a claim under the provisions of this Section against any Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall promptly deliver an Indemnity Notice to the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not be conclusive as to, impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or otherwise be used fails to establishnotify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the existence or Loss in the amount of specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Loss to the Indemnitee or any third partyIndemnified Party on demand. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise If the Indemnifying Party has timely disputed its liability with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both , the Indemnifying Party and the Indemnitee Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within thirty (30) days, either party shall cooperate fully with one another in connection with the defense, compromise or settlement be free to avail itself of any claim, including without limitation making remedy available to the other all pertinent information and witnesses within its control it at reasonable intervals during normal business hourslaw or in equity.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered Except as and to the extent provided in Section 9.5, any claim for indemnification under Sections 9.2 or incurred 9.3 will be made in accordance with this Section 9.4. Hearst Indemnified Parties and MNG Indemnified Parties are referred to herein as “Indemnified Parties,” and the Persons from whom indemnification may be sought pursuant to Sections 9.2 and 9.3 are referred to herein as “Indemnifying Parties.”
(b) In the case of any Lossclaim for indemnification under Section 9.2 or 9.3 (x) arising from a claim of a third Person, such Indemnitee shall so notify the Indemnified Party will give the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation prompt notice of such Lossclaim, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 not later than fifteen (15) days following the Indemnified Party’s receipt of notice of such third party claim or demand(y) in respect of any other matter, promptly upon becoming aware of the facts and circumstances giving rise to such claim, provided that the failure to notify or a delay in notifying an Indemnifying Party as provided in this sentence will not relieve the Indemnifying Party of its obligations pursuant to Section 9.2 or 9.2, as applicable, except to the extent the Indemnifying Party is materially prejudiced by such failure or delay.
(bc) Unless Each party shall cooperate in good faith with, make its relevant files and records available for inspection and copying by, and make its employees available and otherwise render reasonable assistance to, the reasonable judgment other party in its defense of Indemnitee any such claims. Each Indemnifying Party shall have the right, at its sole expense, to control the defense of any claim brought by any third Person (as to which indemnification is sought pursuant to this Article IX) with counsel of such Indemnifying Party’s choice that is reasonably satisfactory to the Indemnified Party, and shall have the right to settle or otherwise protect against the imposition of liability with respect to such claim; provided, however, that:
(i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee Indemnified Parties shall be entitled to participate in conducting the defense of such claim or and to employ counsel at their own expense to assist in the handling of such claim and shall have the right, but not the obligation, to assert any and all cross-claims and counterclaims they may have;
(ii) legitimate business considerations would require such Indemnifying Party shall obtain the Indemnitee prior written approval of each Indemnified Party before entering into any settlement of any such claim or ceasing to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of against any such claim, be entitled if pursuant to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs or as a result of such participation (settlement or cessation, injunctive or other than the costs of providing witnesses or documents at the request of the Indemnifying equitable relief would be imposed against such Indemnified Party or in response to legal processits Affiliates;
(iii) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or enter into any settlement in respect of a claim which that does not include as an unconditional term thereof the giving by the each claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying each Indemnified Party of a release from all liability in respect of such claim.; and
(eiv) Both at the election of the Indemnified Party, such Indemnifying Party and Indemnified Party shall have joint control over the defense or settlement of any such claim, each party to employ counsel at its own expense, to the extent such claim seeks an order, injunction or other equitable relief against such Indemnified Party. After written notice by the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of any such claim, the Indemnifying Party shall not be liable hereunder to indemnify any Person for any legal expenses subsequently incurred in connection therewith, except as expressly provided below and provided that if there is an actual conflict of interest between the Indemnifying Party and the Indemnitee Indemnified Party, which in the reasonable opinion of counsel to the Indemnified Party would prevent one counsel from representing both the Indemnifying Party and the Indemnified Party in any matter, the Indemnifying Party shall cooperate fully with be responsible for all such reasonable counsel expenses of one another in connection with counsel of the defenseIndemnified Party. In the event the Indemnifying Party shall fail to defend, contest or otherwise protect against the imposition of any Losses as to any such claim, the Indemnified Party shall have the right, but not the obligation, to defend, contest or assert any cross-claim or counterclaim or otherwise protect against such claim and may make any compromise or settlement thereof and recover from and be indemnified by the Indemnifying Party for the entire reasonable cost thereof including from legal expenses, disbursements and all amounts paid as a result of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hourssuch matter.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) The Persons who are claiming indemnification under this Article VII are referred to herein as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VIII are referred to herein as "Indemnifying Parties".
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefor.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Merger Agreement (Chiste Corp)
Procedure for Indemnification Claims. For purposes of this Agreement, each The respective indemnification obligations of Seller and Buyer may pursuant to Sections 11.2 and 11.4 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by Seller and Buyer with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, ;
(A) If at any time a claim shall be as follows:
made or threatened, or an action or proceeding shall be commenced or threatened, against a party hereto (athe “Aggrieved Party”) If an Indemnitee believes that it has suffered or incurred any Losswhich could result in liability of the other party (the “Indemnifying Party”) under its indemnification obligations hereunder, such Indemnitee the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable but in to assume the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demand.
proceeding (b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party and to notify the Indemnitee in conducting the defense Aggrieved Party of such claim or (ii) legitimate business considerations would require the Indemnitee its election to defend any such claim, action or respond proceeding within a reasonable time, but in no event more that fifteen days after notice thereof shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shall, by giving notice thereof of its right to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of defend such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionaction or proceeding; provided, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehowever, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived its right to contest and defend against any claim without the prior written consent of the IndemniteeAggrieved Party for Indemnification hereunder based upon or arising out of such claim, which consent will not be unreasonably withheld; and provided, further, action or proceeding.
(B) If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgement or award rendered in connection with such claim, action or proceeding. The Aggrieved Party may not participate, at its expense, in the defense of such claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnified Party all books and records and such officers, employee and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(eC) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and made available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. If the Indemnifying Party, compromise within ten days after notice shall have been given to it by the Aggrieved Party of the latter’s intention to effect a settlement of any such claim, action or proceeding, which notice shall describe with particularity the terms of any such proposed settlement, shall not deposit with an escrow agent mutually satisfactory to the Aggrieved Party and the Indemnifying Party a sum equivalent to the total amount demanded in such claim, actin or proceeding or deliver to the Aggrieved Party a surety bond or an irrevocable letter of credit for such sum in form and substance reasonably satisfactory to the Aggrieved Party, then the Aggrieved Party may settle such claim, action or proceeding on the terms detailed in its notice to the Indemnifying Party, and the Indemnify Party shall be deemed to have agreed to the terms of such settlement and shall not thereafter in any proceeding by the Aggrieved Party for indemnification question the proprietary of such settlement. If the Indemnifying Party makes an escrow deposit or delivers a surety bond or letter of credit as aforesaid and thereafter the Aggrieved Party settles such claim, action or proceeding, then in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, the Aggrieved Party shall have the burden of proving the amount of such liability of the Indemnifying Party, and the amount of the payments made in settlement of any claim, including without limitation making available action or proceeding shall not be determinative as between the Aggrieved Party and the Indemnifying Party of the amount of such indemnification liability, except that the amount of the settlement payments shall constitute the maximum amount of the indemnification liability of the Indemnifying Party. Such escrow deposit, surety bond or letter of credit shall by their respective terms be payable to the Aggrieved Party in an amount determined in accordance with the last sentence of this paragraph (C) and in the event the Indemnifying Party is held liable for indemnification hereunder. If the Indemnifying Party neither makes an escrow deposit not delivers a surety bond or letter of credit as aforesaid, so that no settlement of such claim, action or proceeding is effected, in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, such liability shall be for the amount of any judgement or award rendered with respect to such claim or in such action or proceeding and of all expenses, legal and other, incurred by the Aggrieved Party in the defense against such claim, action or proceeding.
(D) In the event an Aggrieved Party or Indemnifying A Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of paragraphs (B) and (C), respectively, of this Section 11.6 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party’s time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bulova Technologies Group, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) The YWH Indemnified Parties and the Member Indemnified Parties are referred to collectively herein as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VII are referred to herein as "Indemnifying Parties."
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto, or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing his, her or its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “"Indemnifying Party” " in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “"Indemnitee” " or collectively as “"Indemnitees.” " The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s 's obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(cb) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (ba) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ ' fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall to be at as its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (cb) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the The Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(ed) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stratus Services Group Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “"Indemnifying Party” " in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “"Indemnitee” " or collectively as “"Indemnitees.” " The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s 's obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any 15 judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(cb) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (ba) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ ' fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall to be at as its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (cb) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the The Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(ed) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stratus Services Group Inc)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) Buyer Indemnified Parties and Company Indemnified Parties are referred to collectively herein as "Indemnified Parties," and the Persons from whom indemnification is sought pursuant to this Article VI are referred to herein as "Indemnifying Parties."
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability which the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto, or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(d) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim, and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Share Exchange Agreement (Medical Billing Assistance Inc)
Procedure for Indemnification Claims. For purposes (a) Whenever any parties become aware that a claim (an "Underlying Claim") has arisen entitling them to seek indemnification under Section 8 of this Agreement, each such parties (the "Indemnified Parties") shall promptly send a notice ( "Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the "Indemnity Claim"); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 8.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties' failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay Losses incurred by the Indemnitee Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable Losses made pursuant to this Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 8.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
(e) Basket; Limitations on Indemnification; Calculation of Losses.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that case of any claim or demand in respect of which an Indemnitee may seek recovery notice of a Loss under this Section 5 is asserted against claim or sought to be collected from such Indemnitee by demand of a third partyparty that may give rise to a claim for indemnification by the Buyer or Parent or any Shareholder or Seller, or any of their related indemnified parties, as the case may be hereunder (in such capacity, the Indemnitee "Indemnified Party"), such Indemnified Party shall notify give prompt written notice of such claim, demand or circumstance (described in reasonable detail) to the party against whom indemnification may be sought hereunder (in such capacity, the "Indemnifying Party"); provided that the failure to provide such notice shall not affect the obligation of the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt hereunder except to the extent, if any, that the lack of prompt notice adversely affects the ability of the Indemnifying Party to defend against or diminish the losses arising out of such third party claim, demand or circumstance. The Indemnifying Party shall have the right to defend and to direct the defense against any such claim or demand.
(b) Unless , in its name or in the reasonable judgment name of Indemnitee the Indemnified Party, as the case may be, at the expense of the Indemnifying Party, and with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party unless (i) such claim or demand seeks an order, injunction or other equitable relief against the Indemnified Party or (ii) the Indemnified Party shall have reasonably concluded that there is a conflict of interest between the positions of Indemnified Party and the Indemnifying Party and in the Indemnitee in conducting conduct of the defense of such claim or (ii) legitimate business considerations would require demand. Notwithstanding anything in this Agreement to the Indemnitee to defend or respond to such claim in a manner different from that recommended by contrary, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party, and keep the Indemnifying Party shallfully informed, by giving notice thereof to in the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled claim or demand. The Indemnified Party shall have the right to assume and control such participate in the defense of any claim or demand with counsel chosen by it. The Indemnitee shall be entitled employed at its own expense; provided, however, that, in the case of any claim or demand described in clause (i) or (ii) above or as to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of which the Indemnifying Party shall not in fact have employed counsel to assume the defense against such claim or in response to legal process) following demand, the reasonable fees and disbursements of such assumption counsel shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defenseParty. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe have no duties to the Indemnifying Party indemnification obligations with respect to any such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If demand which shall be settled by the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim Indemnified Party without the prior written consent of the Indemnifying Party, which consent will shall not be unreasonably withheld; provided. The Indemnifying Party shall not, further, that if in without the reasonable judgment written consent of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement Indemnified Party, settle or compromise any action in any manner that would materially and adversely affect the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimIndemnified Party.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that case of any claim or demand in respect of which an Indemnitee may seek recovery notice of a Loss under this Section 5 is asserted against claim or sought to be collected from such Indemnitee by demand of a third partyparty that may give rise to a claim for indemnification by the Buyer or Parent or Goldstone or Seller, or any of their related indemnified parties, as the case may be hereunder (in such capacity, the Indemnitee "Indemnified Party"), such Indemnified Party shall notify give prompt written notice of such claim, demand or circumstance (described in reasonable detail) to the party against whom indemnification may be sought hereunder (in such capacity, the "Indemnifying Party"); provided that the failure to provide such notice shall not affect the -------- obligation of the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt hereunder except to the extent, if any, that the lack of prompt notice adversely affects the ability of the Indemnifying Party to defend against or diminish the losses arising out of such third party claim, demand or circumstance. The Indemnifying Party shall have the right to defend and to direct the defense against any such claim or demand.
(b) Unless , in its name or in the reasonable judgment name of Indemnitee the Indemnified Party, as the case may be, at the expense of the Indemnifying Party, and with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party unless (i) such claim or demand seeks an order, injunction or other equitable relief against the Indemnified Party or (ii) the Indemnified Party shall have reasonably concluded that there is a conflict of interest between the positions of Indemnified Party and the Indemnifying Party and in the Indemnitee in conducting conduct of the defense of such claim or (ii) legitimate business considerations would require demand. Notwithstanding anything in this Agreement to the Indemnitee to defend or respond to such claim in a manner different from that recommended by contrary, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party, and keep the Indemnifying Party shallfully informed, by giving notice thereof to in the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled claim or demand. The Indemnified Party shall have the right to assume and control such participate in the defense of any claim or demand with counsel chosen by it. The Indemnitee shall be entitled employed at its own expense; provided, however, -------- ------- that, in the case of any claim or demand described in clause (i) or (ii) above or as to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of which the Indemnifying Party shall not in fact have employed counsel to assume the defense against such claim or in response to legal process) following demand, the reasonable fees and disbursements of such assumption counsel shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defenseParty. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe have no duties to the Indemnifying Party indemnification obligations with respect to any such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If demand which shall be settled by the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim Indemnified Party without the prior written consent of the Indemnifying Party, which consent will shall not be unreasonably withheld; provided. The Indemnifying Party shall not, further, that if in without the reasonable judgment written consent of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement Indemnified Party, settle or compromise any action in any manner that would materially and adversely affect the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claimIndemnified Party.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their The respective indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees the Company and Seller Indemnitees may the Purchaser pursuant to paragraphs 11 and 12 shall be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The conditioned upon compliance by the Company and the Purchaser with the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, :
a. If at any time a claim shall be as follows:
made, or an action or proceeding shall be commenced, against a party to this Agreement (athe "Aggrieved Party") If an Indemnitee believes that it has suffered or incurred any Losswhich could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations under this Agreement, such Indemnitee the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing such Lossnotice of that claim, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference action or proceeding within 15 days following its commencement (except that failure to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss give that notice shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify not excuse the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt of except to the extent that it is materially prejudiced by that failure). The notice of such third party claim shall state the basis for the claim, action or demand.
proceeding and the amount claimed, (bto the extent that amount is determinable at the time when the notice is given) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of and shall permit the Indemnifying Party and the Indemnitee in conducting to assume the defense of any such claim claim, action or proceeding (iiincluding any action or proceeding resulting from any such claim) legitimate business considerations would require with counsel which is reasonably acceptable to the Indemnitee Aggrieved Party. Failure by the Indemnifying Party to notify the Aggrieved Party of his, her, or its election to defend the claim, action or respond proceeding within a reasonable time, but in no event more than 15 days after the notice shall have been given to such claim in a manner different from that recommended by the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party shallof his, by giving notice thereof her, or its right to defend the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumptionaction or proceeding; provided, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defensehowever, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise be deemed to have waived the right to contest and defend against any claim of the Aggrieved Party for indemnification under this Agreement based upon or arising out of that claim, action or proceeding;
b. If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to that claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement of it and, provided the Indemnifying Party is held to be liable for indemnification under this Agreement, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with that claim, action or proceeding. The Aggrieved Party may participate, at his, her, or its expense, in the defense of that claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of that claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of the claim, action or proceeding, enter into any settlement without the prior written consent of the IndemniteeAggrieved Party, which consent will shall not be unreasonably withheld; and provided, further, ;
c. If the Indemnifying Party may does not consent to entry assume or proceed with the vigorous defense of any judgment such claim, action or proceeding, the Aggrieved Party may, at the risk, cost and expense of the Indemnifying Party, defend against the claim, action or proceeding in a manner as he, she, or it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Aggrieved Party shall not, in the defense of any such claim, action or proceeding, enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will shall not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) The MMT Indemnified Parties and the Shareholders Indemnified Parties are referred to collectively herein as "Indemnified Parties", and the Persons from whom indemnification is sought pursuant to this Article VI are referred to herein as "Indemnifying Parties."
(b) If at any time an Indemnitee believes that it has suffered or incurred any LossIndemnified Party determines to assert a right to indemnification hereunder, such Indemnitee the Indemnified Party shall so notify give to the Indemnifying Party promptly written notice describing the matter for which indemnification is sought in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurreddetail. In the event that a demand or claim for indemnification is made hereunder with respect to a matter the amount or extent of which is not yet known or certain, the notice of demand for indemnification shall so state, and, where practicable, shall include an estimate of the amount of the matter. The failure of an Indemnified Party to give notice of any matter to the Indemnifying Party shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to any Indemnified Party.
(c) Within 15 days after receipt of the notice referred to in clause (b) above, the Indemnifying Party from whom indemnification is sought shall (i) if true, acknowledge in writing his responsibility for all or part of such matter, and shall pay or otherwise satisfy the portion of such matter as to which responsibility is acknowledged or take such other action as is reasonably satisfactory to the Indemnified Party to resolve any such matter that involves anyone not a party hereto, or (ii) give written notice to the Indemnified Party of his intention to dispute or contest all or part of such responsibility. Upon delivery of such notice of intention to contest, the parties shall negotiate in good faith to resolve as promptly as possible any dispute as to responsibility for, or the amount of, any such matter. Failure to respond to a notice claiming indemnification shall be deemed a denial of responsibility therefore.
(d) In the event that the Indemnified Party is required to expend any amount in enforcing his, her or its rights of indemnification hereunder, the Indemnifying Parties will, jointly and severally, promptly upon request, pay such amounts to the Indemnified Party if indemnification is required to be made hereunder.
(e) Each Indemnifying Party shall have the right to employ separate counsel in any action or claim or demand which is brought against any Indemnified Party in respect of which an Indemnitee indemnity may seek recovery of a Loss under this Section 5 is asserted against or be sought from it, and to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly participate in writing as soon as practicable but in any event within 30 days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such action or claim, if such Indemnifying Party confirms in writing its responsibility for such action or claim; provided, however, that (i) the Indemnified Party or Parties shall retain control of such action or claim or and (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect fees and expenses of such claim, be entitled to assume and control such defense with separate counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Share Exchange Agreement (Medicine Man Technologies, Inc.)
Procedure for Indemnification Claims. For purposes 8.3.1 Whenever any parties become aware that a claim (an “Underlying Claim”) has arisen entitling them to seek indemnification under Section 8 of this Agreement, each of Seller and Buyer may be referred such parties (the “Indemnified Parties”) shall promptly send a notice (“Notice”) to as an the parties liable for such indemnification (the “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes Parties”) of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect the right to indemnification claims based upon or arising out of any claim(the “Indemnity Claim”); provided, action or proceeding by any person not a party however, that the failure to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 8.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
8.3.2 If an Indemnity Claim does not result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties’ intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate accept the Indemnity Claim as valid. The Indemnifying Parties’ failure to provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) business considerations would require days thereafter, pay Losses incurred by the Indemnitee Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to defend the account or respond accounts specified by the Indemnified Parties..
8.3.3 In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to Losses arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. The parties controlling the defense of the Indemnitee. Upon assuming such defenseUnderlying Claim shall not, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderhowever, the Indemnifying Party shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If 8.3.4 The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party Parties subject to the Indemnitee or any third party. The Indemnitee may not consent to entry last sentence of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party Section 8.3(c) of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another this Agreement, in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it "Underlying Claim") has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 11 of the Agreement, such Indemnitee parties (the "Indemnified Parties") shall promptly send a notice ("Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of the right to indemnification (the "Indemnity Claim"); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 11.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefrom.
(b) If an Indemnity Claim does NOT result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties' failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 11 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 1 contract
Samples: Stock Purchase Agreement (Environmental Service Professionals, Inc.)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Any Indemnified Party promptly in writing describing such Loss, the amount thereof, if known, and the method asserting a right of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of indemnification provided for under this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee Third Party Claim shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event of the Third Party Claim within 30 ten business days following after receipt by such Indemnified Party of written notice of the Third Party Claim. As part of such third party claim or demand.
(b) Unless in notice, the reasonable judgment of Indemnitee (i) there is a conflict between the positions of Indemnified Party shall furnish the Indemnifying Party and with copies of any pleadings, correspondence or other documents relating thereto that are in the Indemnitee in conducting Indemnified Party's possession. The Indemnified Party's failure to notify the defense Indemnifying Party of any such claim or (ii) legitimate business considerations would require matter within the Indemnitee to defend or respond to such claim in a manner different from that recommended by time frame specified above shall not release the Indemnifying Party, in whole or in part, from its obligations under this Article except to the extent that the Indemnifying Party's ability to defend against such claim is actually prejudiced thereby. The Indemnifying Party agrees (and, at such time as the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation acknowledges its liability under this Section 5 Article with respect to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Third Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defenseClaim, the Indemnifying Party shall have full right the sole and exclusive right) to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderdefend against, the Indemnifying Party shall not settle or compromise any claim without such Third Party Claim at the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect expense of such claim.
(c) With respect to a claim as to which the Indemnifying Party. The Indemnified Party (i) does not shall have the right to assume (but not the defense under Section (bobligation) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claimclaim through counsel selected by it, but the cost of such participation which counsel shall be at its own expense. Notwithstanding the foregoing, Indemnified Party's expense to the Indemnitee shall not be required to defend any claim under this Section (c) unless extent that the Indemnifying Party confirms its obligation under this Section 5 to indemnify has assumed the Indemnitee in respect defense of such claim by written notice unless counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party due to an actual or potential conflict of interest, in which case such counsel shall be at the IndemniteeIndemnifying Party's expense. The Indemnified Party shall cooperate with the Indemnifying Party and provide such assistance at the Indemnifying Party's expense as the Indemnifying Party may reasonably request in connection with the defense of such claim, including but not limited to providing the Indemnifying Party access to and use of all relevant corporate records and making available its officers and employees for depositions, other pre-trial discovery and as witnesses at trial, if required. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party has not yet acknowledged its liability under this Article with respect to such claim and may defendThird Party Claim, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both then the Indemnifying Party and the Indemnitee Indemnified Party shall cooperate fully in defending against such Third Party Claim at the Indemnifying Party's expense, and neither party shall have the right, without the other's consent, to settle or compromise any such Third Party Claim.
(b) In the event of any claim for indemnification hereunder that is not a Third Party Claim, the Indemnified Party shall give reasonable notice thereof to the Indemnifying Party and shall afford the Indemnifying Party access to all relevant corporate records and other information in its possession relating thereto.
(c) If any party becomes obligated to indemnify another party with one another respect to any claim for indemnification hereunder and the amount of liability with respect thereto shall have been finally determined, the Indemnifying Party shall pay such amount to the Indemnified Party plus the reasonable fees and expenses of the Indemnified Party and of its counsel and other agents in connection with such claim for indemnification and the defenseenforcement thereof, compromise or settlement of any claim, including without limitation making in immediately available to funds within ten days following written demand by the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.Indemnified Party. Sellers
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller the Sellers, Shareholder and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If an Indemnitee believes that it has suffered or incurred any Loss, such Indemnitee shall so notify the Indemnifying Party promptly in writing describing such Loss, the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 6 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 days following receipt the failure to give such prompt notice shall not relieve an Indemnifying Party of its obligations hereunder except to the extent that the failure to give prompt notice of such third party claim or demandmaterially prejudices the Indemnifying Party.
(b) Unless in the reasonable judgment of Indemnitee (i) there is a conflict between the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 6 to indemnify the Indemnitee in respect of such claim, be entitled to assume and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 6 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claim, including without limitation making available to the other all pertinent information and witnesses within its control at reasonable intervals during normal business hours.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stratus Services Group Inc)
Procedure for Indemnification Claims. For purposes The respective indemnification obligations of this Agreement, each of Seller the Principal Members and Buyer may pursuant to Sections 14.2 and 14.4 shall be referred to as an “Indemnifying Party” in connection conditioned upon compliance by the Principal Members and Buyer with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the "Aggrieved Party") which could reasonably result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable but in to assume the defense of any event within 30 days following receipt of notice of such third party claim claim, action or demandproceeding (including any action or proceeding resulting from any such claim).
(b) Unless in If the reasonable judgment Indemnifying Party assumes the defense of Indemnitee (i) there is a conflict between any such claim, action or proceeding, the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder and subject to the Indemnitee limitation on the amount of indemnification set forth in conducting this Article 14, to holding the Aggrieved Party harmless from and against any and all Damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with such claim, action or proceeding. The Aggrieved Party may participate, at its expense, in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Aggrieved Party agrees to participate therein after cooperate and make available to the Indemnified Party all books and records and such assumptionofficers, but the costs of such participation (other than the costs of providing witnesses or documents at the request employees and agents of the Indemnifying Aggrieved Party or as are reasonably necessary and useful in response to legal process) following such assumption shall be at connection with the expense of the Indemniteedefense. Upon assuming such defense, the The Indemnifying Party shall have full right to enter into any compromise not, in the defense of such claim, action or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderproceeding, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(ec) Both If the Indemnifying Party does not assume the defense of any such claim within thirty (30) days of its tender, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents of the Indemnifying Party as are reasonably necessary and useful in connection with the defense.
(d) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, compromise records, officers, employees or settlement agents, as required by the terms of any claimparagraphs (b) and (c), respectively, of this Section 14.6 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including without limitation making available reasonable legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party's time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their The respective indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees the parties pursuant to Sections 13.2 and Seller Indemnitees may 13.3 shall be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The conditioned upon compliance by the other parties with the following procedures to be followed with respect to for indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If at any time a claim shall be made or threatened, or an Indemnitee believes that it has suffered action or incurred any Lossproceeding shall be commenced or threatened, such Indemnitee against a party hereto (the “Aggrieved Party”) which could result in liability of the other party (the “Indemnifying Party”) under its indemnification obligations hereunder, the Aggrieved Party shall so notify give to the Indemnifying Party promptly in writing describing prompt notice of such Lossclaim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof, if known, and the method of computation of such Loss, all with reasonable particularity and containing a reference thereof (to the provisions of this Agreement or other agreement, instrument or certificate delivered pursuant hereto in respect of which extent such Loss amount is determinable at the time when such notice is given) and shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee by a third party, the Indemnitee shall notify permit the Indemnifying Party promptly in writing as soon as practicable to assume the defense of any such claim, action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such claim, action or proceeding within a reasonable time, but in no event more than fifteen days after notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such claim, action or proceeding; provided, however, that the Indemnifying Party shall not be deemed to have waived its right to contest and defend against any event within 30 days following receipt claim of notice the Aggrieved Party for indemnification hereunder based upon or arising out of such third party claim claim, action or demandproceeding.
(b) Unless in If the reasonable judgment Indemnifying Party assumes the defense of Indemnitee (i) there is a conflict between any such claim, action or proceeding, the positions obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, provided the Indemnifying Party is held to be liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnitee Indemnifying Party or any judgment or award rendered in conducting connection with such claim, action or proceeding. The Aggrieved Party may participate, at its expense, in the defense of such claim claim, action or (ii) legitimate business considerations would require the Indemnitee to defend or respond to such claim in a manner different from proceeding provided that recommended by the Indemnifying Party, the Indemnifying Party shall, by giving notice thereof to shall direct and control the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect defense of such claim, be entitled to assume and control such defense with counsel chosen by itaction or proceeding. The Indemnitee shall be entitled Aggrieved Party agrees to participate therein after cooperate and make available to the Indemnified Party all books and records and such assumptionofficers, but employees and agents as are reasonably necessary and useful in connection with the costs of such participation (other than the costs of providing witnesses or documents at the request of the Indemnifying Party or in response to legal process) following such assumption shall be at the expense of the Indemniteedefense. Upon assuming such defense, the The Indemnifying Party shall have full right to enter into any compromise not, in the defense of such claim, action or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunderproceeding, the Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to the entry of any judgment or award, or enter into any settlement settlement, except in respect either event with the prior consent of a claim the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defense. The Indemnifying Party shall be entitled to participate in the defense of such claim, but the cost of such participation shall be at its own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If the Indemnitee assumes the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Aggrieved Party of a release from all liability in respect of such claim, action or proceeding.
(ec) Both If the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against such claim, action or proceeding in such manner as it may deem appropriate. The Indemnifying Party agrees to cooperate and make available to the Indemnitee shall cooperate fully with one another Aggrieved Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. If the Indemnifying Party, compromise within ten days after notice shall have been given to it by the Aggrieved Party of the latter’s intention to effect a settlement of any such claim, action or proceeding, which notice shall describe with particularity the terms of any such proposed settlement, shall not deposit with an escrow mutually satisfactory to the Aggrieved Party and the Indemnifying Party a sum equivalent to the total amount demanded in such claim, action or proceeding or deliver to the Aggrieved Party a surety bond or an irrevocable letter of credit for such sum in form and substance reasonably satisfactory to the Aggrieved Party, then the Aggrieved Party may settle such claim, action or proceeding on the terms detailed in its notice to the Indemnifying Party, and the Indemnifying Party shall be deemed to have agreed to the terms of such settlement and shall not thereafter in any proceeding by the Aggrieved Party for indemnification question the propriety of such settlement. If the Indemnifying Party makes an escrow deposit or delivers a surety bond or letter of credit as aforesaid and thereafter the Aggrieved Party settles such claim, action or proceeding, then in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, the Aggrieved Party shall have the burden of proving the amount of such liability of the Indemnifying Party, and the amount of the payments made in settlement of any claim, including without limitation making available action or proceeding shall not be determinative as between the Aggrieved Party and the Indemnifying Party of the amount of such indemnification liability, except that the amount of the settlement payments shall constitute the maximum amount of the indemnification liability of the Indemnifying Party. Such escrow deposit, surety bond or letter of credit shall by their respective terms be payable to the Aggrieved Party in an amount determined in accordance with the last sentence of this paragraph (c) and in the event the Indemnifying Party is held liable for indemnification hereunder. If the Indemnifying Party neither makes an escrow deposit or delivers a surety bond or letter of credit as aforesaid, so that no settlement of such claim, action or proceeding is effected, in any proceeding by the Aggrieved Party for indemnification in the event the Indemnifying Party is held liable for indemnification hereunder, such liability shall be for the amount of any judgment or award rendered with respect to such claim or in such action or proceeding and of all expenses, legal and otherwise, incurred by the Aggrieved Party in the defense against such claim, action or proceeding.
(d) In the event an Aggrieved Party or Indemnifying Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of paragraphs (b) and (c), respectively, of this Section 13.4 the party to which such cooperation is provided shall pay the out-of-pocket costs and expenses (including legal fees and disbursements) of the party providing such cooperation and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the party providing such cooperation for such party’s time or the salaries or costs of fringe benefits or other all pertinent information similar expenses paid by the party providing such cooperation to its officers and witnesses within its control at reasonable intervals during normal business hoursemployees in connection therewith.
Appears in 1 contract
Samples: Replacement Carrier Agreement (National Atlantic Holdings Corp)
Procedure for Indemnification Claims. For purposes of this Agreement, each of Seller and Buyer may be referred to as an “Indemnifying Party” in connection with their indemnification obligations herewith. For purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be referred to individually as an “Indemnitee” or collectively as “Indemnitees.” The procedures to be followed with respect to indemnification claims based upon or arising out of any claim, action or proceeding by any person not a party to this Agreement, shall be as follows:
(a) If Whenever any parties become aware that a claim (an Indemnitee believes that it "Underlying Claim") has suffered or incurred any Lossarisen entitling them to seek indemnification under this Section 7 of the Agreement, such Indemnitee parties (the "Indemnified Parties") shall promptly send a notice ("Notice") to the parties liable for such indemnification (the "Indemnifying Parties") of the right to indemnification (the "Indemnity Claim"); provided, however, that the failure to so notify the Indemnifying Party promptly Parties will relieve the Indemnifying Parties from liability under this Agreement with respect to such Indemnity Claim only if, and only to the extent that, such failure to notify the Indemnifying Parties results in writing describing such Lossthe forfeiture by the Indemnifying Parties of rights and defenses otherwise available to the Indemnifying Parties with respect to the Underlying Claim. Any Notice pursuant to this Section 7.3(a) shall set forth in reasonable detail, to the extent then available, the basis for such Indemnity Claim and an estimate of the amount thereof, if known, and the method of computation of such Loss, all damages arising therefore.
(b) If an Indemnity Claim does NOT result from or arise in connection with reasonable particularity and containing a reference to the provisions of this Agreement any Underlying Claim or other agreement, instrument or certificate delivered pursuant hereto in respect of which such Loss shall have occurred. In the event that any claim or demand in respect of which an Indemnitee may seek recovery of a Loss under this Section 5 is asserted against or sought to be collected from such Indemnitee legal proceedings by a third party, the Indemnitee shall notify the Indemnifying Party promptly in writing as soon as practicable but in any event within 30 Parties will have thirty (30) calendar days following receipt of notice of such third party claim or demand.
(b) Unless in the reasonable judgment of Indemnitee Notice to issue a written response to the Indemnified Parties, indicating the Indemnifying Parties' intention to either (i) there is a conflict between contest the positions of the Indemnifying Party and the Indemnitee in conducting the defense of such claim Indemnity Claim or (ii) legitimate business considerations would require accept the Indemnitee Indemnity Claim as valid. The Indemnifying Parties' failure to defend provide such a written response within such thirty (30) day period shall be deemed to be an acceptance of the Indemnity Claim as valid. In the event that an Indemnity Claim is accepted as valid, the Indemnifying Parties shall, within fifteen (15) Business Days thereafter, pay the damages incurred by the Indemnified Parties in respect of the Underlying Claim in cash by wire transfer of immediately available funds to the account or respond accounts specified by the Indemnified Parties. To the extent appropriate, payments for indemnifiable damages made pursuant to Section 7 of the Agreement will be treated as adjustments to the Purchase Price.
(c) In the event an Indemnity Claim results from or arises in connection with any Underlying Claim or legal proceedings by a third party, the Indemnifying Parties shall have fifteen (15) calendar days following receipt of the Notice to send a Notice to the Indemnified Parties of their election to, at their sole cost and expense, assume the defense of any such claim in Underlying Claim or legal proceeding; provided that such Notice of election shall contain a manner different from that recommended confirmation by the Indemnifying Party, Parties of their obligation to hold harmless the Indemnified Parties with respect to damages arising from such Underlying Claim. The failure by the Indemnifying Party shall, by giving notice thereof Parties to the Indemnitee confirming the Indemnifying Party’s obligation under this Section 5 to indemnify the Indemnitee in respect of such claim, be entitled elect to assume the defense of any such Underlying Claim within such fifteen (15) day period shall entitle the Indemnified Parties to undertake control of the defense of the Underlying Claim on behalf of and control such defense with counsel chosen by it. The Indemnitee shall be entitled to participate therein after such assumption, but for the costs of such participation (other than the costs of providing witnesses or documents at the request account and risk of the Indemnifying Party or Parties in response to legal process) following such assumption shall be at manner as the expense Indemnified Parties may deem appropriate, including, but not limited to, settling the Underlying Claim. However, the parties controlling the defense of the Indemnitee. Upon assuming such defense, the Indemnifying Party shall have full right to enter into any compromise or settlement which is dispositive of the matter involved; provided that except for the settlement of a claim that involves no obligation of the Indemnitee other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party Underlying Claim shall not settle or compromise any claim such Underlying Claim without the prior written consent of the Indemniteeother parties, which consent will shall not be unreasonably withheld; and provided, further, the Indemnifying Party may not consent to entry of any judgment withheld or enter into any settlement in respect of a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability in respect of such claim.
(c) With respect to a claim as to which the Indemnifying Party (i) does not have the right to assume the defense under Section (b) or (ii) shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such claim with counsel chosen by it and the Indemnifying Party shall be obligated to pay all reasonable attorneys’ fees and expenses of the Indemnitee incurred in connection with such defensedelayed. The Indemnifying Party non-controlling parties shall be entitled to participate in (but not control) the defense of any such claimaction, but the cost of such participation shall be with their own counsel and at its their own expense. Notwithstanding the foregoing, the Indemnitee shall not be required to defend any claim under this Section (c) unless the Indemnifying Party confirms its obligation under this Section 5 to indemnify the Indemnitee in respect of such claim by written notice to the Indemnitee. If the Indemnitee is not required to defend any claim under the immediately preceding sentence, it shall owe no duties to the Indemnifying Party with respect to such claim and may defend, fail to defend or settle such claim without affecting its right to indemnity hereunder.
(d) If The Indemnifying Parties and the Indemnitee assumes Indemnified Parties will cooperate reasonably, fully and in good faith with each other, at the defense of a claim pursuant to Section (c) above, the Indemnitee may compromise or settle any claim against it at any time; provided, however, that the Indemnitee shall not settle or compromise any claim without the prior written consent sole expense of the Indemnifying PartyParties, which consent will not be unreasonably withheld; provided, further, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and the Indemnifying Party withholds consent to such settlement or compromise, the Indemnitee may enter into such settlement or compromise and such settlement or compromise shall not be conclusive as to, or otherwise be used to establish, the existence or amount of the liability of the Indemnifying Party to the Indemnitee or any third party. The Indemnitee may not consent to entry of any judgment or enter into any settlement or compromise with respect to a claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnifying Party of a release from all liability in respect of such claim.
(e) Both the Indemnifying Party and the Indemnitee shall cooperate fully with one another in connection with the defense, compromise or settlement of any claimUnderlying Claim including, including without limitation limitation, by making available to the other parties all pertinent information and witnesses within its control at their reasonable intervals during normal business hourscontrol.
Appears in 1 contract
Samples: Stock Purchase Agreement (Environmental Service Professionals, Inc.)
