Procedure - Third Party Claims. (a) Promptly after receipt by an Indemnified Party of notice of the commencement of any proceeding against it by a third party (“Third Party Claim”), such Indemnified Party will, if a Claim for indemnification is to be made against an Indemnifying Party, provide to the Indemnifying Party written notice of the commencement of such Claim (together with copies of any legal papers served), provided, however, that the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced or made more expensive by the Indemnified Party’s failure to give such notice. (b) The Indemnified Party shall take such action, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request to avoid dispute, or appeal, settle or defend such Third Party Claim; provided, however, that the Indemnified Party shall not accept or pay or settle or make any submission in respect of such Claims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed. (c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified Party, the Indemnifying Party shall have the right to assume the defense of any Third Party Claim at its expense, and through counsel of its choice, if it gives notice of its intention to do so to the Indemnified Party within twenty (20) Business Days of the receipt of such notice from the Indemnified Party, provided, that the Indemnified Party shall be entitled to retain its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite election to assume the defense of the Third Party Claim within twenty (20) Business Days after it receives notice pursuant to this Section 9.6(c), the Indemnified Party shall have the right to defend such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, 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. (d) If the Indemnifying Party assumes the defense of a Third Party Claim, (A) no compromise or settlement of such Third Party Claim may be effected by the Indemnifying Party without the Indemnified Party’s consent which will not be unreasonably withheld, delayed or conditioned unless (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (ii) the compromise or settlement includes a complete release of the Indemnified Party, and (iii) there is no finding or admission of any violation of Law or any violation of the rights of any Person by the Indemnified Party. If the Indemnifying Party fails to undertake the defense against a Third Party Claim pursuant to Section 9.6(c), the Indemnified Party shall be free to control the defense of any such claim or proceeding and the Indemnifying Party shall not have any right to participate in the settlement or assume or reassume the defense of such claims or proceeding.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Wireless Telecom Group Inc), Asset Purchase Agreement (Wireless Telecom Group Inc)
Procedure - Third Party Claims. (a) Promptly after receipt by an Indemnified Party of notice by a third party of any claim, complaint or the commencement of any action or proceeding against it by a third party (“Third with any Governmental Entity with respect to which such Indemnified Party Claim”)may be entitled to receive payment from the Indemnifying Party(ies) for any indemnified claims under either or both of the Acquisition Agreements, such Indemnified Party will, if a Claim for indemnification is to be made against an Indemnifying Party, provide to shall notify the Indemnifying Party written notice of such claim or demand or of the commencement of such Claim (together with action or proceeding and provide copies of any legal papers served)all pleadings and other documentation relating to such claim, demand, complaint, action or proceeding; provided, however, that the failure so to promptly notify the Indemnifying Party will not shall relieve the Indemnifying Party of any from liability that it may have to any Indemnified Partyfor such claim only if, except and only to the extent that that, such failure to notify the Indemnifying Party demonstrates that results in the defense of such action is prejudiced or made more expensive forfeiture by the Indemnified Party’s failure to give such notice.
(b) The Indemnified Party shall take such action, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request of material rights and defenses otherwise available to avoid dispute, or appeal, settle or defend such Third Party Claim; provided, however, that the Indemnified Party shall not accept or pay or settle or make any submission in respect of such Claims, without the Indemnifying Party’s prior consent theretoParty with respect to such claim, which shall not be unreasonably withhelddemand, conditioned action or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified Party, the proceeding. The Indemnifying Party shall have the right to assume the defense of any Third Party Claim at its expenseright, and through counsel of its choice, if it gives upon written notice of its intention to do so delivered to the Indemnified Party within twenty (20) Business Days days thereafter, to assume the defense of such claim, demand, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the receipt fees and disbursements of such notice from counsel. In the Indemnified Partyevent, providedhowever, that the Indemnified Party shall be entitled to retain its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim declines or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite election to assume the defense of the Third Party Claim within twenty (20) Business Days after it receives notice pursuant claim, demand, action or proceeding or to this Section 9.6(c), the Indemnified Party shall have the right employ counsel reasonably satisfactory to defend such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, 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.
(d) If the Indemnifying Party assumes the defense of a Third Party Claim, (A) no compromise or settlement of such Third Party Claim may be effected by the Indemnifying Party without the Indemnified Party’s consent which will not be unreasonably withheld, delayed or conditioned unless (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (ii) the compromise or settlement includes a complete release of the Indemnified Party, and (iii) there is no finding or admission of any violation of Law or any violation of the rights of any Person by the Indemnified Party. If the Indemnifying Party fails to undertake the defense against a Third Party Claim pursuant to Section 9.6(c)in either case within such 20-day period, the then such Indemnified Party shall be free may employ legal counsel to control the defense of represent or defend such Indemnified Party in any such claim claim, demand, action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such legal counsel as incurred; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one legal counsel for all Indemnified Parties in any jurisdiction in any single claim, demand, action or proceeding. In any claim, demand, action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense thereof, shall have any the right to participate in such defense and to retain such party's own counsel at such party's own expense. The Indemnifying Party or the settlement or assume or reassume Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the other party(ies) reasonably apprised of the status of the defense of any claim, demand, action or proceeding the defense of which such claims party is maintaining, and to cooperate in good faith with each other with respect to the defense of any such claim, demand, action or proceeding.
Appears in 2 contracts
Samples: Indemnification Agreement (Profit Recovery Group International Inc), Indemnification Agreement (PRG Schultz International Inc)
Procedure - Third Party Claims. (a) Promptly after receipt by an Indemnified Party of notice of the commencement of any proceeding against it by a third party (“Third Party Claim”), such Indemnified Party will, if a Claim claim for indemnification is to be made against an Indemnifying Party, provide to the Indemnifying Party written notice of the commencement of such Claim claim (together with copies of any legal papers served), provided, however, however that the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced or made more expensive by the Indemnified Party’s failure to give such notice.
(b) The If any Third Party Claim is brought against an Indemnified Party shall take and such action, at the Indemnifying Party’s expense, as Indemnified Party gives notice to the Indemnifying Party may reasonably request to avoid dispute, or appeal, settle or defend of the commencement of such Third Party Claim; provided, however, that the Indemnified Party shall not accept or pay or settle or make any submission in respect of such Claims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified Party, the Indemnifying Party shall have the right to assume the defense of any such Third Party Claim at its expense, provided that (x) in the reasonable judgment of the Indemnified Party, the Indemnifying Party has adequate resources to undertake such defense and through satisfy any indemnifiable Losses arising from such Third Party Claim and (y) the selection of counsel of its choiceis approved by the Indemnified Party, if it gives notice of its intention to do so to which approval will not be unreasonably withheld. If the Indemnified Party so determines that the Indemnifying Party does not have adequate resources, or the Indemnifying Party shall elect not to assume the defense of any such Third Party Claim, or fails to make such an election within twenty (20) Business Days of the receipt of such notice from the Indemnified Party, provided, that the Indemnified Party shall be entitled to retain its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite election to assume the defense of the Third Party Claim within twenty (20) Business Days days after it receives notice pursuant to this Section 9.6(c8.6(a), the Indemnified Party shall have the right to defend such Third Party Claim at the expense of the Indemnifying Party, and the Indemnifying Party will be bound by any determination made in such proceeding or any good faith compromise or settlement effected by the Indemnified Party to which the Indemnifying Party consents, which consent may not be unreasonably withheld, delayed or conditioned. The Indemnified Party, at its own expense, Party shall have the right to retain its own counsel and participate in (but not control) the defense of a Third Party Claim defended by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary hereunder and to retain its own counsel in good faith to defend connection with such Third Party Claim prior to Claim, but the time that it receives a notice from fees and expenses of such counsel shall be at the Indemnified Party’s expense unless (i) the Indemnifying Party as contemplated by this Section 9.6(c). The and the Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully with have mutually agreed in writing to the retention of such counsel or (ii) the named parties in any Third Party Claim (included impleaded parties) include the Indemnifying Party and the Indemnified Party, and representation of the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict (in which case the Indemnifying Party shall not be permitted to assume the defense of such defense and make available to Third Party Claim). Unless otherwise agreed by the Indemnifying Party, at if the Indemnifying Party is obligated to pay the fees and expenses of counsel to the Indemnified Party with respect to a Third Party Claim, the Indemnifying Party shall be obligated to pay only the fees and expenses associated with one attorney or law firm (plus local counsel as required), as applicable, for the Indemnified Party.
(c) If the Indemnifying Party assumes the defense of a Third Party Claim and subsequently determines that the Third Party Claim is not subject to indemnification by the Indemnifying Party hereunder, the Indemnifying Party shall give prompt notice of such fact to the Indemnified Party, after which the Indemnified Party shall have the right to reassume control of the defense of such Third Party Claim; provided that the failure by the Indemnifying Party to promptly notify the Indemnified Party of any such determination shall not result in any liability to the Indemnifying Party except to the extent that the Indemnified Party demonstrates that the defense of such action has been prejudiced or made more costly by the Indemnifying Party’s expense, all witnesses, pertinent records, materials failure to give such notice. If the Indemnifying Party assumes the defense of a Third Party Claim and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as subsequently determines that such claim is reasonably required not subject to indemnification by the Indemnifying Party hereunder, the Indemnifying Party shall have the right, following its delivery of the notice contemplated by the immediately preceding sentence, to withdraw from such defense, and such withdrawal shall not result in any liability to the Indemnifying Party except to the extent that the Indemnified Party demonstrates that the defense of such action has been prejudiced or made more costly by the timing of the Indemnifying Party’s withdrawal.
(d) If the Indemnifying Party assumes the defense of a Third Party Claim, (Ax) no compromise or settlement of such Third Party Claim may be effected by the Indemnifying Party without the Indemnified Party’s consent (which consent will not be unreasonably withheld, delayed or conditioned conditioned) unless (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (ii) the compromise or settlement includes a complete release of the Indemnified Party, and (iii) there is no finding or admission of any violation of Law law or any violation of the rights of any Person by the Indemnified Party. If , and (iv) there is no effect on any other Third Party Claims that may be made against the Indemnifying Indemnified Party; and (y) the Indemnified Party fails will have no liability with respect to undertake any compromise or settlement of such claims effected without its consent as may be required pursuant to clause (x) above.
(e) Notwithstanding the defense against foregoing, if the exclusive remedy sought under a Third Party Claim pursuant to Section 9.6(c)is for injunctive relief for which an Indemnified Party may be liable, the Indemnified Party shall be free may, by notice to control the defense of any such claim or proceeding and the Indemnifying Party shall not have any Party, assume the exclusive right to defend, compromise, or settle such proceeding, but the Indemnifying Party, although still liable for the payment of all reasonable legal fees, costs and expenses incurred in connection therewith, will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent which may not be unreasonably withheld, delayed or conditioned. In addition, if a Third Party Claim seeks both injunctive or other non-monetary relief and monetary damages, the Indemnified Party may, by notice to the Indemnifying Party, participate in the settlement or assume or reassume the defense of such claims or proceedingproceeding at its own cost.
(f) With respect to any obligations of an Indemnifying Party and an Indemnified Party which arise pursuant to the provisions of this Article 8, the Indemnifying Party and the Indemnified Party agree to cooperate with each other as reasonably requested by the other.
Appears in 1 contract
Procedure - Third Party Claims. (ai) Promptly after receipt by an Indemnified Party of notice of the commencement of any proceeding against it by a third party Person (“"Third Party Claim”"), such Indemnified Party will, if a Claim claim for indemnification is to be made against an Indemnifying Party, provide to the Indemnifying Party written notice of the commencement of such Claim claim (together with copies of any legal papers served), provided, however, that ) but the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced or made more expensive by the Indemnified Party’s 's failure to give such notice.
(bii) The If any proceeding referred to in this Section is brought against an Indemnified Party shall take such action, at the Indemnifying Party’s expense, as and it gives notice to the Indemnifying Party may reasonably request to avoid dispute, or appeal, settle or defend such Third Party Claim; provided, however, that of the Indemnified Party shall not accept or pay or settle or make any submission in respect commencement of such Claims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified Partyproceeding, the Indemnifying Party shall have will be entitled to participate in such proceeding and, to the right extent that it wishes (unless (i) the Indemnifying Party is also a party to such proceeding and the Indemnified Party upon the advice of counsel reasonably determines in good faith that a conflict or potential conflict exists such that joint representation would be inappropriate under applicable standards of professional conduct, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume the defense of any Third Party Claim at its expense, and through such proceeding with counsel of its choice, if it gives notice of its intention to do so reasonably satisfactory to the Indemnified Party within twenty (20) Business Days of the receipt of such and, after notice from the Indemnified Party, provided, that Indemnifying Party to the Indemnified Party shall be entitled to retain of its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite election to assume the defense of such proceeding, the Third Indemnifying Party Claim within twenty (20) Business Days after will not, as long as it receives notice pursuant diligently conducts such defense, be liable to this Section 9.6(c), the Indemnified Party shall have the right under this Section for any fees of other counsel or any other expenses with respect to defend such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended such proceeding, in each case subsequently incurred by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully connection with the Indemnifying Party in defense of such defense and make available to the Indemnifying Partyproceeding, at the Indemnifying Party’s expense, 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.
(d) other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party ClaimClaim and subsequently determines that the Third Party Claim is not subject to indemnification by the Indemnifying Party hereunder, the Indemnifying Party shall give prompt notice of such fact to the Indemnified Party, after which the Indemnified Party shall have the right to reassume control of the defense of such claim; provided, that the failure by the Indemnifying Party to promptly notify the Indemnified Party of any such determination shall not result in any liability to the Indemnifying Party except to the extent that the Indemnified Party demonstrates that the defense of such action has been prejudiced by the Indemnifying Party's failure to give such notice. If the Indemnifying Party assumes the defense of a Third Party Claim and subsequently determines that such claim is not subject to indemnification by the Indemnifying Party hereunder, the Indemnifying Party shall have the right, following its delivery of the notice contemplated by the immediately preceding sentence, to withdraw from such defense, and such withdrawal shall not result in any liability to the Indemnifying Party except to the extent that the Indemnified Party demonstrates that the defense of such action has been prejudiced by the timing of the Indemnifying Party's withdrawal. If the Indemnifying Party assumes the defense of a proceeding, (Ax) no compromise or settlement of such Third Party Claim claims may be effected by the Indemnifying Party without the Indemnified Party’s 's consent (which consent will not be unreasonably withheld, delayed or conditioned conditioned) unless (iA) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, ; and (iiy) the Indemnified Party will have no liability with respect to any compromise or settlement includes a complete release of such claims effected without its consent as may be required pursuant to clause (x) above. If notice is given to an Indemnifying Party of the Indemnified Party, and (iii) there is no finding or admission commencement of any violation of Law or any violation of the rights of any Person by the Indemnified Party. If the Indemnifying Party fails to undertake the defense against a Third Party Claim pursuant to Section 9.6(c), the Indemnified Party shall be free to control the defense of any such claim or proceeding and the Indemnifying Party shall not have any right does not, within twenty (20) days after the Indemnified Party's notice is given, give notice to participate in the settlement or Indemnified Party of its election to assume or reassume the defense of such claims proceeding or contest responsibility therefore, the Indemnifying Party will be bound by any determination made in such proceeding or any compromise or settlement effected by the Indemnified Party to which the Indemnifying Party consents, which consent may not be unreasonably withheld, delayed or conditioned.
(iii) Notwithstanding the foregoing, if the exclusive remedy sought under a Third Party Claim is for injunctive relief for which an Indemnified Party may be liable, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such proceeding, but the Indemnifying Party, although still liable for the payment of all reasonable legal fees, costs and expenses incurred in connection therewith, will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent which may not be unreasonably withheld, delayed or conditioned. In addition, if a Third Party Claim seeks both injunctive or other non-monetary relief and monetary damages, the Indemnified Party may, by notice to the Indemnifying Party, participate in the defense of such proceeding at its own cost.
(iv) Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be obligated to pay the fees and expenses of more than one counsel for the Indemnified Parties whenever the Indemnifying Party is required hereunder to pay the fees and expenses of counsel for the Indemnified Parties.
Appears in 1 contract
Samples: Asset Purchase Agreement (Herley Industries Inc /New)
Procedure - Third Party Claims. (a) Promptly In the event that, at any time or from time to time after receipt by the Effective Time, a Person entitled to indemnification under this Article XIII (an "Indemnified Party") shall sustain a Loss against which such Indemnified Party of notice of the commencement of any proceeding against it by a third party (“Third Party Claim”)is entitled to indemnification under this Agreement, such Indemnified Party willshall notify the party hereto obligated to provide such indemnification (the "Indemnitor") of any such Loss so sustained. Indemnitor shall pay to such Indemnified Party the amount of such Loss so sustained, if a Claim for indemnification is to be made against an Indemnifying Party, provide subject to the Indemnifying Party written notice of right to contest any claim which has not yet resulted in a Loss, as provided herein and under the commencement of such Claim (together with copies of any legal papers served), provided, however, that the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced or made more expensive by the Indemnified Party’s failure to give such notice.
(b) Escrow Agreement. The Indemnified Party shall take such actionpromptly notify the Indemnitor of the existence of any claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request to avoid disputedemand, or appealother matter involving liabilities to third parties to which the Indemnitor's indemnification obligations would apply and shall give the Indemnitor a reasonable opportunity to defend the same or prosecute such action to conclusion or settlement satisfactory to the Indemnified Party at Indemnitor's own expense and with counsel of Indemnitor's selection (who shall be approved by Indemnified Party, settle or defend such Third Party Claimwhich approval shall not be unreasonably withheld); provided, however, provided that the Indemnified Party shall not accept or pay or settle or make any submission in respect of such Claims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified Party, the Indemnifying Party shall at all times also have the right to assume fully participate in the defense of any Third Party Claim at its own expense, and through counsel of its choice, if it gives notice of its intention to do so to the Indemnified Party within twenty (20) Business Days of the receipt of such notice from the Indemnified Party, provided, that the Indemnified Party shall be entitled to retain its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails Indemnitor shall, within a reasonable time after said notice, fail to make the requisite election to assume the defense of the Third Party Claim within twenty (20) Business Days after it receives notice pursuant to this Section 9.6(c)defend, the Indemnified Party shall have the right to defend such Third Party Claim at right, but not the expense of the Indemnifying Party. The Indemnified Partyobligation, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, 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.
(d) If the Indemnifying Party assumes the defense of a Third Party Claim, (A) no compromise or settlement of such Third Party Claim may be effected by the Indemnifying Party without the Indemnified Party’s consent which will not be unreasonably withheld, delayed or conditioned unless (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (ii) the compromise or settlement includes a complete release of the Indemnified Party, and (iii) there is no finding or admission of any violation of Law or any violation of the rights of any Person by the Indemnified Party. If the Indemnifying Party fails to undertake the defense against a Third Party Claim pursuant of, and to Section 9.6(c)compromise or settle (exercising reasonable business judgment) the claim or other matter on behalf, for the account, and at the risk and expense, of Indemnitor. Except as provided in the preceding sentence, the Indemnified Party shall not compromise or settle the claim or other matter without the prior written consent of the Indemnitor, which consent shall not be free unreasonably withheld. If the claim is one that cannot by its nature be defended solely by the Indemnitor, the Indemnified Party shall make available all information and assistance that the Indemnitor may reasonably request; provided that any associated expenses shall be paid by the Indemnitor.
(b) If any Indemnitor contests or challenges any claim or action asserted against an Indemnified Party referred to control the defense of in this Article XIII, it shall do so at its own cost and expense, holding such Indemnified Party harmless from all costs, fees, expenses, debts, liabilities and charges in connection with such contest; shall diligently defend against any such claim claim; and shall hold such Indemnified Party's business and assets free and harmless from any attachment, execution, judgment, lien or proceeding and the Indemnifying Party shall not have any right to participate in the settlement or assume or reassume the defense of such claims or proceedingother legal process.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Management Network Group Inc)
Procedure - Third Party Claims. (a) Promptly after receipt by an Indemnified Party of notice of the commencement of any proceeding against it by a third party Person (“Third Party Claim”), such Indemnified Party will, if a Claim claim for indemnification is to be made against an Indemnifying Party, provide to the Indemnifying Party written notice of the commencement of such Claim claim (together with copies of any legal papers served), provided, however, that ) but the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced or made more expensive by the Indemnified Party’s failure to give such notice.
(b) The If any proceeding referred to in Section 8.6(a) is brought against an Indemnified Party shall take such action, at the Indemnifying Party’s expense, as and it gives notice to the Indemnifying Party may reasonably request to avoid dispute, or appeal, settle or defend such Third Party Claim; provided, however, that of the Indemnified Party shall not accept or pay or settle or make any submission in respect commencement of such Claims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified Partyproceeding, the Indemnifying Party shall have will be entitled to participate in such proceeding and, to the right extent that it wishes (unless (i) the Indemnifying Party is also a party to such proceeding and the Indemnified Party upon the advice of counsel reasonably determines in good faith that a conflict or potential conflict exists such that joint representation would be inappropriate under applicable standards of professional conduct, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume the defense of any Third Party Claim at its expense, and through such proceeding with counsel of its choice, if it gives notice of its intention to do so reasonably satisfactory to the Indemnified Party within twenty (20) Business Days of the receipt of such and, after notice from the Indemnified Party, provided, that Indemnifying Party to the Indemnified Party shall be entitled to retain of its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite election to assume the defense of such proceeding, the Third Indemnifying Party Claim within twenty (20) Business Days after will not, so long as it receives notice pursuant diligently conducts such defense, be liable to this Section 9.6(c), the Indemnified Party shall have the right under this Article VIII for any fees of other counsel or any other expenses with respect to defend such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended such proceeding, in each case subsequently incurred by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully connection with the Indemnifying Party in defense of such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, 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.
(d) proceeding. If the Indemnifying Party assumes the defense of a Third Party ClaimClaim and subsequently determines that the Third Party Claim is not subject to indemnification by the Indemnifying Party hereunder, the Indemnifying Party shall give prompt notice of such fact to the Indemnified Party, after which the Indemnified Party shall have the right to reassume control of the defense of such claim; provided, that the failure by the Indemnifying Party to promptly notify the Indemnified Party of any such determination shall not result in any liability to the Indemnifying Party except to the extent that the Indemnified Party demonstrates that the defense of such action has been prejudiced by the Indemnifying Party’s failure to give such notice. If the Indemnifying Party assumes the defense of a Third Party Claim and subsequently determines that such claim is not subject to indemnification by the Indemnifying Party hereunder, the Indemnifying Party shall have the right, following its delivery of the notice contemplated by the immediately preceding sentence, to withdraw from such defense, and such withdrawal shall not result in any liability to the Indemnifying Party except to the extent that the Indemnified Party demonstrates that the defense of such action has been prejudiced by the timing of the Indemnifying Party’s withdrawal. If the Indemnifying Party assumes the defense of a proceeding, (Ax) no compromise or settlement of such Third Party Claim claims may be effected by the Indemnifying Party without the Indemnified Party’s consent (which consent will not be unreasonably withheld, delayed or conditioned conditioned) unless (iA) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, ; and (iiy) the Indemnified Party will have no liability with respect to any compromise or settlement includes a complete release of such claims effected without its consent as may be required pursuant to clause (x) above. If notice is given to an Indemnifying Party of the Indemnified Party, and (iii) there is no finding or admission commencement of any violation of Law or any violation of the rights of any Person by the Indemnified Party. If the Indemnifying Party fails to undertake the defense against a Third Party Claim pursuant to Section 9.6(c), the Indemnified Party shall be free to control the defense of any such claim or proceeding and the Indemnifying Party shall not have any right does not, within twenty (20) days after the Indemnified Party’s notice is given, give notice to participate in the settlement or Indemnified Party of its election to assume or reassume the defense of such claims proceeding, the Indemnifying Party will be bound by any determination made in such proceeding or any compromise or settlement effected by the Indemnified Party to which the Indemnifying Party consents, which consent may not be unreasonably withheld, delayed or conditioned.
(c) Notwithstanding the foregoing, if the exclusive remedy sought under a Third Party Claim is for injunctive relief for which an Indemnified Party may be liable, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such proceeding, but the Indemnifying Party, although still liable for the payment of all reasonable legal fees, costs and expenses incurred in connection therewith, will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent which may not be unreasonably withheld, delayed or conditioned. In addition, if a Third Party Claim seeks both injunctive or other non-monetary relief and monetary damages, the Indemnified Party may, by notice to the Indemnifying Party, participate in the defense of such proceeding at its own cost.
(d) Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be obligated to pay the fees and expenses of more than one counsel for the Indemnified Parties whenever the Indemnifying Party is required hereunder to pay the fees and expenses of counsel for the Indemnified Parties.
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Procedure - Third Party Claims. (a) Promptly after receipt by an Indemnified Party of notice of the commencement of any proceeding Action against it by any Person who is not (i) a third party to this Agreement, (“Third ii) a Security Holder (in such capacity), or (iii) an Affiliate of any such Person described in clause (i) or (ii), for which an Indemnifying Party Claim”)is obligated to provide indemnification under this Agreement, such Indemnified Party will, if a Claim for indemnification claim is to be made against an Indemnifying Party, provide give written notice to the Indemnifying Party written notice of the commencement of such Claim (Action, together with copies a copy of any the claim, process or other legal papers served)pleading, provided, however, that but the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced or made more expensive by the Indemnified Indemnifying Party’s failure to give such notice.
(b) The If any Action referred to in Section 8.5(a) is brought against an Indemnified Party shall take such action, at the Indemnifying Party’s expense, as and it gives notice to the Indemnifying Party may reasonably request to avoid dispute, or appeal, settle or defend such Third Party Claim; provided, however, that of the Indemnified Party shall not accept or pay or settle or make any submission in respect commencement of such Claims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified PartyAction, the Indemnifying Party shall have will be entitled to participate in such Action and, to the right extent that it wishes (unless (i) the Indemnifying Party is also a party to such Action and the Indemnified Party reasonably determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume the defense of any Third Party Claim at its expense, and through such Action with counsel of its choice, if it gives notice of its intention to do so reasonably satisfactory to the Indemnified Party within twenty (20) Business Days of the receipt of such and, after notice from the Indemnified Party, provided, that Indemnifying Party to the Indemnified Party shall be entitled to retain of its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite election to assume the defense of such Action, the Third Indemnifying Party Claim within twenty (20) Business Days after will not, so long as it receives notice pursuant diligently conducts such defense, be liable to the Indemnified Party under this Section 9.6(c)Article VIII for any fees of other counsel or any other expenses with respect to the defense of such Action, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Action. If the Indemnifying Party assumes the defense of the Action, the Indemnified Party shall have the right to defend such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and will cooperate in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully with the Indemnifying Party in such defense and make available will have the right to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information participate in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required defense of such Action assisted by the Indemnifying Party.
(d) counsel of its own choosing and at its own expense. If the Indemnifying Party assumes the defense of a Third Party Claiman Action, (Ai) no compromise or settlement of such Third Party Claim claims may be effected by the Indemnifying Party without the Indemnified Party’s consent (which consent will not be unreasonably withheld, delayed conditioned or conditioned delayed) unless (iA) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, ; and (ii) the Indemnified Party will have no liability with respect to any compromise or settlement includes a complete release of such claims effected without its consent if such consent is required by this sentence. If notice is given to an Indemnifying Party of the commencement of any Action and the Indemnifying Party does not, within thirty (30) days after the Indemnified Party’s notice is given, and (iii) there is no finding or admission give notice to the Indemnified Party of its election to assume the defense of such Action, the Indemnifying Party will be bound by any violation of Law determination made in such Action or any violation of the rights of any Person compromise or settlement effected by the Indemnified Party. If Party to which the Indemnifying Party fails consents, which consent by the Indemnifying Party may not be unreasonably withheld, conditioned or delayed.
(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that an Action for which an Indemnifying Party is obligated to undertake the defense against provide indemnification under this Agreement is reasonably likely to have a Third Party Claim pursuant Material Adverse Effect upon it or its Affiliates other than as a result of monetary damages for which it would be entitled to Section 9.6(c)indemnification under this Agreement, the Indemnified Party shall may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such Action, but the Indemnifying Party, although still liable for the payment of all reasonable legal fees, costs and expenses incurred in connection therewith, will not be free to control the defense bound by any determination of an Action so defended or any such claim compromise or proceeding settlement effected without its consent (which may not be unreasonably delayed, conditioned or withheld). Netsmart and the Indemnifying Party shall not have Securities Holders’ Representative agree to act reasonably and in good faith in determining whether to settle, compromise, defend and/or appeal any right to participate in the settlement or assume or reassume the defense of such claims or proceedingclaim.
Appears in 1 contract
Procedure - Third Party Claims. (a) Promptly after receipt by an Indemnified Party of notice of the commencement of any proceeding against it by a third party (“Third Party Claim”), such Indemnified Party will, if a Claim claim for indemnification is to be made against an Indemnifying Party, provide to the Indemnifying Party written notice of the commencement of such Claim claim (together with copies of any legal papers served), provided, however, that the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the rights of the Indemnifying Party demonstrates that the defense of are actually prejudiced by such action is prejudiced or made more expensive by the Indemnified Party’s failure to give such noticefailure.
(b) The Indemnified Party shall take such action, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request to avoid dispute, or appeal, settle or defend such Third Party Claim; provided, however, that the Indemnified Party shall not not, and shall use commercially reasonable efforts to procure that the Company shall not, accept or pay or settle or make any submission in respect of such Claimsclaims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Provided that it acknowledges in writing its obligation to indemnify the Indemnified Party, the Indemnifying Party shall have the right to assume the defense of any Third Party Claim at its expense, and through counsel provided that (x) in the reasonable judgment of its choice, if it gives notice of its intention to do so to the Indemnified Party within twenty (20) Business Days of the receipt of such notice from the Indemnified Party, provided, that the Indemnified Party shall be entitled to retain its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party has adequate resources to undertake such defense and Indemnified Party in connection with a Third Party Claim or (ii) if satisfy any indemnifiable Losses arising from such Third Party Claim and (Ay) seeks injunctive or other non-monetary reliefthe selection of counsel is approved by the Indemnified Party, (B) involves criminal or quasi criminal allegations, (C) involves Losses which approval will not be unreasonably withheld. If the Indemnified Party determines that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX does not have adequate resources or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite such an election to assume the defense of the Third Party Claim within twenty (20) Business Days days after it receives notice pursuant to this Section 9.6(c9.7(a), the Indemnified Party shall have the right to defend such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, 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.
(d) If the Indemnifying Party assumes the defense of a Third Party Claim, (A) no compromise or settlement of such Third Party Claim may be effected by the Indemnifying Party without the Indemnified Party’s consent which will not be unreasonably withheld, delayed or conditioned unless (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (ii) the compromise or settlement includes a complete release of the Indemnified Party, and (iii) there is no finding or admission of any violation of Law law or any violation of the rights of any Person by the Indemnified Party. If .
(e) Notwithstanding the Indemnifying Party fails to undertake the defense against foregoing, if a remedy sought under a Third Party Claim pursuant to Section 9.6(c)is for injunctive or other non-monetary relief for which an Indemnified Party may be liable, the Indemnified Party shall may, by notice to the Indemnifying Party, assume the exclusive right to defend or settle such proceeding at the Indemnifying Party’s cost and expense; provided, however, such Third Party Claim may not be free settled without the Indemnifying Party’s consent, which will not be unreasonably withheld.
(f) With respect to control any obligations of an Indemnifying Party and an Indemnified Party which arise pursuant to the defense provisions of any such claim or proceeding and this Article IX, the Indemnifying Party shall not have any right and the Indemnified Party agree to participate in cooperate with each other as reasonably requested by the settlement or assume or reassume the defense of such claims or proceedingother.
Appears in 1 contract
Procedure - Third Party Claims. (a) Promptly after receipt by an Indemnified Party of notice of the commencement of any proceeding against it by a third party Person (“"Third Party Claim”"), such Indemnified Party will, if a Claim claim for indemnification is to be made against an Indemnifying Party, provide to the Indemnifying Party written notice of the commencement of such Claim claim (together with copies of any legal papers served), provided, however, that ) but the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced (or made more expensive expensive) by the Indemnified Party’s 's failure to give such notice.
(b) The If any proceeding referred to in Section 7.6(a) is brought against an Indemnified Party shall take such action, at the Indemnifying Party’s expense, as and it gives notice to the Indemnifying Party may reasonably request to avoid dispute, or appeal, settle or defend such Third Party Claim; provided, however, that of the Indemnified Party shall not accept or pay or settle or make any submission in respect commencement of such Claims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified Partyproceeding, the Indemnifying Party shall have will be entitled to participate in such proceeding and, to the right extent that it wishes (unless (i) the Indemnifying Party is also a party to such proceeding and the Indemnified Party upon the advice of counsel reasonably determines in good faith that a conflict or potential conflict exists such that joint representation would be inappropriate under applicable standards of professional conduct, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume the defense of any Third Party Claim at its expense, and through such proceeding with counsel of its choice, if it gives notice of its intention to do so reasonably satisfactory to the Indemnified Party within twenty (20) Business Days of the receipt of such and, after notice from the Indemnified Party, provided, that Indemnifying Party to the Indemnified Party shall be entitled to retain of its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite election to assume the defense of such proceeding, the Third Indemnifying Party Claim within twenty (20) Business Days after will not, as long as it receives notice pursuant diligently conducts such defense, be liable to this Section 9.6(c), the Indemnified Party shall have the right under this Article 7 for any fees of other counsel or any other expenses with respect to defend such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended such proceeding, in each case subsequently incurred by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully connection with the Indemnifying Party in defense of such defense and make available to the Indemnifying Partyproceeding, at the Indemnifying Party’s expense, 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.
(d) other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party ClaimClaim and subsequently determines that the Third Party Claim is not subject to indemnification by the Indemnifying Party hereunder, the Indemnifying Party shall give prompt notice of such fact to the Indemnified Party, after which the Indemnified Party shall have the right to reassume control of the defense of such claim; provided, that the failure by the Indemnifying Party to promptly notify the Indemnified Party of any such determination shall not result in any liability to the Indemnifying Party except to the extent that the Indemnified Party demonstrates that the defense of such action has been prejudiced (or made more expensive) by the Indemnifying Party's failure to give such notice. If the Indemnifying Party assumes the defense of a Third Party Claim and subsequently determines that such claim is not subject to indemnification by the Indemnifying Party hereunder, the Indemnifying Party shall have the right, following its delivery of the notice contemplated by the immediately preceding sentence, to withdraw from such defense, and such withdrawal shall not result in any liability to the Indemnifying Party except to the extent that the Indemnified Party demonstrates that the defense of such action has been prejudiced by the timing of the Indemnifying Party's withdrawal. If the Indemnifying Party assumes the defense of a proceeding, (Ax) no compromise or settlement of such Third Party Claim claims may be effected by the Indemnifying Party without the Indemnified Party’s 's consent (which consent will not be unreasonably withheld, delayed or conditioned conditioned) unless (iA) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, ; and (iiy) the Indemnified Party will have no liability with respect to any compromise or settlement includes a complete release of such claims effected without its consent as may be required pursuant to clause (x) above. If notice is given to an Indemnifying Party of the commencement of any proceeding and within twenty (20) days after the Indemnified Party's notice is given, and (iii) there is no finding or admission the Indemnifying Party does not give notice to the Indemnified Party of its election to assume the defense of such proceeding, the Indemnifying Party will be bound by any violation of Law determination made in such proceeding or any violation of the rights of any Person compromise or settlement effected by the Indemnified Party. If Party to which the Indemnifying Party fails to undertake consents, which consent may not be unreasonably withheld, delayed or conditioned.
(c) Notwithstanding the defense against foregoing, if the exclusive remedy sought under a Third Party Claim pursuant to Section 9.6(c)is for injunctive relief for which an Indemnified Party may be liable, the Indemnified Party shall may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such proceeding, but the Indemnifying Party, although still liable for the payment of all reasonable legal fees, costs and expenses incurred in connection therewith, will not be free bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent which may not be unreasonably withheld, delayed or conditioned. In addition, if a Third Party Claim seeks both injunctive or other non-monetary relief and monetary damages, the Indemnified Party may, by notice to control the Indemnifying Party, participate in the defense of any such claim or proceeding and at its own cost.
(d) Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not have any right be obligated to participate in pay the settlement or assume or reassume fees and expenses of more than one counsel for the defense Indemnified Parties whenever the Indemnifying Party is required hereunder to pay the fees and expenses of such claims or proceedingcounsel for the Indemnified Parties.
Appears in 1 contract
Samples: Asset Purchase Agreement (Netsmart Technologies Inc)
Procedure - Third Party Claims. (a) Promptly after receipt by an Indemnified Party of notice of the commencement of any proceeding against it by a third party (“Third Party Claim”)it, such Indemnified Party will, if a Claim for indemnification claim is to be made against an Indemnifying Party, provide give notice to the Indemnifying Party written notice of the commencement of such Claim (together with copies of any legal papers served)claim, provided, however, that but the failure to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced or made more expensive by the Indemnified Indemnifying Party’s 's failure to give such notice.
(b) The If any proceeding referred to in Section 9.5(a) is brought against an Indemnified Party shall take such action, at the Indemnifying Party’s expense, as and it gives notice to the Indemnifying Party may reasonably request to avoid dispute, or appeal, settle or defend such Third Party Claim; provided, however, that of the Indemnified Party shall not accept or pay or settle or make any submission in respect commencement of such Claims, without the Indemnifying Party’s prior consent thereto, which shall not be unreasonably withheld, conditioned or delayed.
(c) If any Indemnifying Party shall receive notice of a claim for indemnity from an Indemnified Partyproceeding, the Indemnifying Party shall have will be entitled to participate in such proceeding and, to the right extent that it wishes (unless (i) the Indemnifying Party is also a party to such proceeding and the Indemnified Party reasonably determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume the defense of any Third Party Claim at its expense, and through such proceeding with counsel of its choice, if it gives notice of its intention to do so reasonably satisfactory to the Indemnified Party within twenty (20) Business Days of the receipt of such and, after notice from the Indemnified Party, provided, that Indemnifying Party to the Indemnified Party shall be entitled to retain of its own counsel if (i) a conflict of interest exists or is reasonably likely to exist that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnified Party in connection with a Third Party Claim or (ii) if such Third Party Claim (A) seeks injunctive or other non-monetary relief, (B) involves criminal or quasi criminal allegations, (C) involves Losses that are reasonably expected to exceed the maximum amount for which the Indemnifying Party could be entitled under this Article IX or (D) is a claim an adverse determination of which would be detrimental to the Indemnified Party’s reputation or future business prospects; provided, further that the reasonable fees and expenses of counsel so retained by the Indemnified Party shall be reimbursed by the Indemnifying Party as a Loss pursuant to this Article IX. If the Indemnifying Party fails to make the requisite election to assume the defense of such proceeding, the Third Indemnifying Party Claim within twenty (20) Business Days after will not, as long as it receives notice pursuant diligently conducts such defense, be liable to this Section 9.6(c), the Indemnified Party shall have the right under this Article IX for any fees of other counsel or any other expenses with respect to defend such Third Party Claim at the expense of the Indemnifying Party. The Indemnified Party, at its own expense, shall have the right to retain its own counsel and participate in the defense of a Third Party Claim defended such proceeding, in each case subsequently incurred by the Indemnifying Party. The Indemnified Party may take any actions reasonably necessary and in good faith to defend such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by this Section 9.6(c). The Indemnified Party shall, and shall cause its Affiliates and representatives to, cooperate fully connection with the Indemnifying Party in defense of such defense and make available to the Indemnifying Partyproceeding, at the Indemnifying Party’s expense, 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.
(d) other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claimproceeding, (Ai) it will be conclusively established for purposes of this Agreement that the claims made in that proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such Third Party Claim claims may be effected by the Indemnifying Party without the Indemnified Party’s 's consent (which consent will not be unreasonably withheld, delayed withheld or conditioned delayed) unless (iA) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (ii) the compromise or settlement includes a complete release of the Indemnified Party, ; and (iii) there is no finding or admission of any violation of Law or any violation of the rights of any Person by the Indemnified Party. If the Indemnifying Party fails to undertake the defense against a Third Party Claim pursuant to Section 9.6(c), the Indemnified Party shall be free will have no liability with respect to control any compromise or settlement of such claims effected without its consent. If notice is given to an Indemnifying Party of the defense commencement of any such claim or proceeding and the Indemnifying Party shall not have any right does not, within fifteen days after the Indemnified Party's notice is given, give notice to participate in the settlement or Indemnified Party of its election to assume or reassume the defense of such claims proceeding, the Indemnifying Party will be bound by any determination made in such proceeding or any compromise or settlement effected by the Indemnified Party to which the Indemnifying Party consents, which consent may not be unreasonably withheld.
(c) Notwithstanding the foregoing, in the event that a claim against the Shareholders involves Taxes:
(i) the Shareholders' Representative, and its attorneys, agents and other representatives, will be entitled to participate in such proceeding (at the Shareholders' expense) to the extent Aeroflex determines in good faith that it is reasonably appropriate to do so, but will not be authorized to assume the defense of such claim;
(ii) the Shareholders, on the one hand, and Aeroflex, on the other hand, shall cooperate (and cause their respective Affiliates to cooperate) with each other in connection with such claim without the express written consent of Aeroflex; and
(iii) if Aeroflex does not allow the Shareholders' Representative to assume the defense of such claim, then (A) the Shareholders nevertheless shall remain liable for the payment of all reasonable legal fees, costs and expenses incurred in connection therewith, (B) Aeroflex shall promptly provide the Shareholders' Representative with access to and copies of all relevant information relative to such claim during the pendency of such claim, and (C) none of Aeroflex or its Affiliates shall agree to compromise or settle such claim without the Shareholders' Representatives consent (which will not be unreasonably withheld or delayed).
(iv) Aeroflex and the Shareholders' Representative agree to cooperate reasonably in determining whether to settle, compromise, defend and/or appeal any claim.
(d) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a proceeding is reasonably likely to have a Material Adverse Effect upon it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such proceeding, but the Indemnifying Party, although still liable for the payment of all reasonable legal fees, costs and expenses incurred in connection therewith, will not be bound by any determination of a proceeding so defended or any compromised or settlement effected without its consent which may not be unreasonably delayed or withheld. Aeroflex and the Shareholders' Representative agree to cooperate reasonably in determining whether to settle, compromise, defend and/or appeal any claim.
Appears in 1 contract
Samples: Merger Agreement (Aeroflex Inc)
