Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to a claim for indemnification against the Indemnitors under this Article IX, stating the nature, basis and (to the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matter. (b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall have the right to participate in, or by giving written notice to the Indemnitee, to assume the defense of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then: (i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests; (ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim; (iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim; (iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim; (v) the Indemnitor shall not, without the written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, settle or compromise any pending or threatened Third Party Claim in respect of which indemnification may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and (vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent not to be unreasonably withheld, conditioned or delayed. (c) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts to pursue any claims for insurance with respect to any claims or Losses for which it is seeking indemnification hereunder. (d) Except to the extent of a conflict between this Section 9.6 and Section 6.8(e), in which case Section 6.8(e) shall control, the procedures set forth in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters).
Appears in 2 contracts
Samples: Stock Purchase Agreement (PGT, Inc.), Stock Purchase Agreement (PGT, Inc.)
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Company Indemnified Party making a claim for indemnification against for Company Indemnified Claims under Section 9.02 will notify the Indemnitors under this Article IXInsurer of each Company Indemnified Claim in writing promptly after receiving notice of such, stating describing the natureCompany Indemnified Claim, the amount thereof (if known and quantifiable) and the basis and (to the extent known) amount thereofthereof in reasonable detail; provided, however, that no delay the failure to notify the Insurer will affect the rights of a Company Indemnified Party hereunder only if, and to the extent, such failure has an actual material prejudicial effect on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except Insurer’s Liabilities with respect to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matterclaim.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall The Insurer will have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense against any Company Indemnified Claim with counsel of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel its choice reasonably acceptable satisfactory to the Indemnitee, Company Indemnified Party and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume control the defense of any Third Party such Company Indemnified Claim.
(c) From and after the date that the Insurer has assumed and is conducting the defense of a Company Indemnified Claim in accordance with Section 9.03(b), the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writingCompany Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, within thirty (30) calendar days after receiving notice but not control, the defense of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Company Indemnified Claim, (ii) the Third Company Indemnified Party may retain counsel at its sole cost and expense to control the defense of any portion of the Action, demand or other claim against the Company Indemnified Party that is not a Company Indemnified Claim involves solely monetary damages(the “Uncovered Claim”), (iii) the Losses that may result from Insurer and the Third Company Indemnified Party will cooperate fully with each other and any of their respective counsel in connection with the defense, negotiation or settlement of any such Company Indemnified Claim or (if the Company Indemnified Party retains counsel for the Uncovered Claim) the Uncovered Claim, along including providing access to any relevant books and records, properties, employees and Representatives; provided, however, that for avoidance of doubt, the foregoing will not require any Person to waive, or take any action which has the effect of waiving, its attorney-client privilege, attorney work-product, or any other applicable privilege with any and all other pending claims against the Indemniteerespect thereto, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall Insurer will not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available consent to the Indemnitor entry of any judgment on or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, enter into any settlement with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Company Indemnified Claim without the prior written consent of the Indemnitee, Company Indemnified Party (which consent shall will not be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by the Insurer, settle and either does not impose an injunction or compromise other equitable relief upon the Company Indemnified Party, or adversely impact the Tax Qualified status of the Plan, or admits liability on the part of any pending or threatened Third Company Indemnified Party, (v) the Company Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or will not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability settlement with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Company Indemnified Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent Insurer (which will not to be unreasonably withheld, conditioned or delayed.
(c) The Indemnitee shall), and shall cause its Affiliates to, use commercially reasonable efforts (vi) the Company Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without the prior consent of the Insurer.
(d) Except If the Insurer has not assumed the defense of a Company Indemnified Claim after notice thereof, (i) the Company Indemnified Party may defend against the Company Indemnified Claim in any manner it reasonably determines to be appropriate, (ii) the Insurer will reimburse the Company Indemnified Party promptly and periodically for the costs of defending against the Company Indemnified Claim (including prompt payment of reasonable attorneys’ fees and expenses allocable to such Company Indemnified Claim) to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder and (iii) the Insurer will remain responsible for any costs the Company Indemnified Party may incur resulting from the Company Indemnified Claim to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder. If the Company Indemnified Party has not assumed the defense of a conflict between this an Uncovered Claim as contemplated by Section 9.6 and Section 6.8(e9.03(c)(ii), the Insurer is not responsible in which case Section 6.8(e) shall controlany way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim; provided, however, that the procedures set forth Insurer’s responsibility for Company Indemnified Claims will not be altered in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters)way.
Appears in 2 contracts
Samples: Definitive Purchase Agreement (Kimberly Clark Corp), Definitive Purchase Agreement (Kimberly Clark Corp)
Procedures for Indemnification Claims. Except as otherwise provided in the Tax Matters Agreement, the respective indemnification obligations of Seller and Buyer pursuant to Sections 8.2 and 8.3 shall be conditioned upon compliance by the Buyer Indemnified Parties (in respect of the obligations of Seller) or the Seller Indemnified Parties (in respect of the obligations of Buyer) with the following procedures for indemnification claims arising out of this Agreement:
(a) Any party seeking indemnity If at any time a claim shall be made or threatened, or an action or proceeding shall be commenced or threatened, against a person (the "Aggrieved Party") which could result in liability of Buyer or Seller pursuant to its indemnification obligations hereunder (as such, the “Indemnitee”) "Indemnifying Party"), the Aggrieved Party shall promptly notify give to the Indemnifying Party prompt notice of such claim, action or proceeding; provided, however, that a failure to provide prompt notice by the Aggrieved Party shall not be deemed a failure to comply with these procedures unless the Indemnifying Party is damaged thereby and provided, further, that the Indemnifying Party shall have no obligation in writing respect of any claim unless such notice shall have been delivered to the party Indemnifying Party prior to the expiration of the Surviving Representations and Surviving Covenants upon which such claim is based. Such notice shall state the basis for the claim, action or parties who may be providing indemnity hereunder (proceeding and the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to a claim for indemnification against the Indemnitors under this Article IX, stating the nature, basis and amount thereof (to the extent known) such amount thereof; provided, that no delay on is determinable at the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with time when such notice of is given) and shall permit the matter.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall have the right to participate in, or by giving written notice to the Indemnitee, to assume the defense of any matter (a “Third Indemnifying Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third claim, action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party Claim as aforesaidto notify the Aggrieved Party of its election to defend any such claim, then:
(i) action or proceeding within a reasonable time, but in no event more than 30 days after notice thereof shall have been given to the Indemnitor 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 required deemed to pay or otherwise indemnify the Indemnitee have waived its right to contest and defend against any attorneys’ fees incurred claim of the Aggrieved Party for indemnification hereunder based upon or arising out of such 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 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 Damages caused by or arising out of any settlement approved by the Indemnitee Indemnifying Party or any judgment or award rendered in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claimclaim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or proceeding. The Aggrieved Party may participate, at any time thereafterits expense, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third claim, action or proceeding, provided that the Indemnifying Party Claim;
(iv) shall direct and control the Indemnitee shall not admit defense of such claim, action or proceeding. Without limiting any liability other obligation under this Agreement, 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 respect to such Third the defense. The Indemnifying Party Claim;
(v) the Indemnitor shall not, without in the written consent defense of the Indemniteesuch claim, which consent shall not be unreasonably withheldaction or proceeding, conditioned or delayed, settle or compromise any pending or threatened Third Party Claim in respect of which indemnification may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment or award, or enter into any settlement, except in either event with the prior consent of the Aggrieved Party (Asuch consent not to be unreasonably withheld) which does not, to the extent that the Indemnitee unless such judgment, award or any of its Affiliates may have any liability with respect to such Claim, include settlement includes as an unconditional term thereof the delivery giving by the claimant or the plaintiff to the Indemnitee Aggrieved Party of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claimclaim, (B) which includes any statement as to action or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially proceeding and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include entails no material adverse effects upon the Aggrieved Party, either directly or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent not to be unreasonably withheld, conditioned or delayedindirectly.
(c) The Indemnitee shallIf the Indemnifying Party does not assume the defense of any such claim, action or proceeding, the Aggrieved Party may defend against, or settle, such claim, action or proceeding in such manner as it may deem appropriate. Without limiting any other obligation under this Agreement, the Indemnifying Party agrees to cooperate and shall cause its Affiliates tomake available to the Aggrieved Party all books and records and such officers, use commercially reasonable efforts to pursue any claims for insurance employees and agents as are reasonably necessary and useful in connection with respect to any claims the defense or Losses for which it is seeking indemnification hereundersettlement of such claim, action or proceeding.
(d) Except If an Aggrieved Party shall cooperate in the defense or make available books, records, officers, employees or agents, as required by the terms of Section 8.4(b) or (c), the Indemnifying Party shall pay the out-of-pocket costs and expenses (including legal fees and disbursements) of the Aggrieved Party and of its officers, employees and agents reasonably incurred in connection with providing such cooperation, but shall not be responsible to reimburse the extent Aggrieved Party for such party's time or the salaries or costs of a conflict between fringe benefits or other similar expenses paid by the Aggrieved Party to its officers and employees in connection therewith.
(e) Notwithstanding the foregoing provisions of this Section 9.6 8.4, Buyer shall be entitled to control all investigatory and Section 6.8(e), in which case Section 6.8(e) shall control, the procedures set forth in this Section 9.6 shall apply remedial actions relating to any Third Party Claim environmental contamination or condition (including, without limitation, underground and above ground storage tank removal and closure, PCB removal, asbestos removal and similar matters) affecting the Owned Real Property or any real property leased in connection with the CD Int Business. Buyer agrees that is described all such investigatory and remedial actions shall be conducted in Section 6.8(e) a cost-effective and commercially reasonable manner consistent with reasonable environmental standards or as otherwise required by applicable law or order of an environmental agency (relating after reasonable attempts to Tax Contests appeal or limit such order). Buyer shall consult with and certain other Tax matters)advise Seller in advance of all material environmental investigatory and remedial actions proposed to be taken by Buyer for which Seller may be obligated to indemnify Buyer pursuant to this Agreement and shall permit Seller to review in advance all material filings made by Buyer with government environmental agencies.
Appears in 1 contract
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Company Indemnified Party making a claim for indemnification against for Company Indemnified Claims under Section 9.02 will notify the Indemnitors under this Article IXInsurer of each Company Indemnified Claim in writing promptly after receiving notice of such, stating describing the natureThird Party Claim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail; provided, however, that the failure to notify the Insurer will affect the rights of a Company Indemnified Party hereunder only if and (to the extent known) amount thereof; provided, that no delay such failure has an actual prejudicial effect on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except Insurer with respect to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matterclaim.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall The Insurer will have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense against any Company Indemnified Claim with counsel of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel its choice reasonably acceptable satisfactory to the Indemnitee, Company Indemnified Party and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume control the defense of any Third Party such Company Indemnified Claim.
(c) From and after the date that the Insurer has assumed and is conducting the defense of a Company Indemnified Claim in accordance with Section 9.03(b), the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writingCompany Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, within thirty (30) calendar days after receiving notice but not control, the defense of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Company Indemnified Claim, (ii) the Third Company Indemnified Party may retain counsel at its sole cost and expense to control the defense of any portion of the Action, demand or other claim against the Company Indemnified Party that is not a Company Indemnified Claim involves solely monetary damages(the “Uncovered Claim”), (iii) the Losses that may result from Insurer and the Third Company Indemnified Party will cooperate fully with each other and any of their respective counsel in connection with the defense, negotiation or settlement of any such Company Indemnified Claim or (if the Company Indemnified Party retains counsel for the Uncovered Claim) the Uncovered Claim, along including providing access to any relevant books and records, properties, employees and Representatives; provided, however, that for avoidance of doubt, the foregoing will not require any Person to waive, or take any action which has the effect of [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission waiving, its attorney-client privilege, attorney work-product, or any and all other pending claims against the Indemniteeapplicable privilege with respect thereto, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall Insurer will not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available consent to the Indemnitor entry of any judgment on or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, enter into any settlement with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Company Indemnified Claim without the prior written consent of the Indemnitee, Company Indemnified Party (which consent shall will not be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by the Insurer and does not impose an injunction or other equitable relief upon the Company Indemnified Party, settle or compromise adversely impact the Tax Qualified status of the Plan, or admit liability on the part of any pending or threatened Third Company Indemnified Party, (v) the Company Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or will not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability settlement with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Company Indemnified Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent Insurer (which will not to be unreasonably withheld, conditioned or delayed.
(c) The Indemnitee shall), and shall cause its Affiliates to, use commercially reasonable efforts (vi) the Company Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without the prior consent of the Insurer.
(d) Except If the Insurer has not assumed the defense of a Company Indemnified Claim after notice thereof, (i) the Company Indemnified Party may defend against the Company Indemnified Claim in any manner it reasonably determines to be appropriate, (ii) the Insurer will reimburse the Company Indemnified Party promptly and periodically for the costs of defending against the Company Indemnified Claim (including reasonable attorneys’ fees and expenses allocable to such Company Indemnified Claim) to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder and (iii) the Insurer will remain responsible for any costs the Company Indemnified Party may incur resulting from the Company Indemnified Claim to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder. If the Company Indemnified Party has not assumed the defense of a conflict between this an Uncovered Claim as contemplated by Section 9.6 and Section 6.8(e9.03(c)(ii), the Insurer is not responsible in which case Section 6.8(e) shall controlany way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim; provided, however, that the procedures set forth Insurer’s responsibility for Company Indemnified Claims will not be altered in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters)way.
Appears in 1 contract
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Indemnified Party making a claim for indemnification against for Third Party Claims under Section 9.1 shall notify the Indemnitors under this Article IXInsurer of each Third Party Claim in writing promptly after receiving notice of such, stating describing the natureThird Party Claim, the amount thereof (if known and quantifiable) and the basis and (thereof in reasonable detail; provided that, the failure to so notify the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor Insurer shall not relieve the Indemnitor from any obligation Insurer of its obligations hereunder except to the extent that (and only to the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with extent that) such claim failure shall have caused the indemnifiable Losses to be forwarded to Indemnitor together with greater than such Losses would have been had the Indemnified Party given the Insurer prompt notice of the matterhereunder.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor The Insurer shall have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice Claim with counsel of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject its choice reasonably satisfactory to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Indemnified Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume control the defense of such Third Party Claim, unless so long as the Insurer accepts without reservation (Abut without waiver of any rights under Section 9.2(c)) responsibility to indemnify the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to Indemnified Party for such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;.
(iic) From and after the date that the Insurer has assumed and is conducting the defense of a Third Party Claim in accordance with Section 9.2(b), (i) the Indemnitee shall make available to the Indemnitor all booksIndemnified Party may retain separate co-counsel at its sole cost and expense and participate in, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for but not control, the defense of such Third Party Claim;
; (ii) the Indemnified Party may retain counsel at its sole cost and expense to control the defense of any portion of the action, lawsuit, proceeding, investigation, demand or other claim against the Indemnified Party that is not a Third Party Claim (the “Uncovered Claim”); (iii) the Indemnitee Insurer and the Indemnified Party shall otherwise cooperate as reasonably requested by fully with each other and any of their respective counsel in connection with the Indemnitor in the defense defense, negotiation or settlement of any such Third Party Claim or (if the Indemnified Party retains counsel for the Uncovered Claim;
) the Uncovered Claim, including providing access to any relevant books and records, properties, employees and Representatives; provided that, for avoidance of doubt, the foregoing will not require any Person to waive, or take any action which has the affect of waiving, its attorney-client privilege, attorney work-product, or any other applicable privilege with respect thereto; (iv) the Indemnitee Insurer shall not admit consent to the entry of any liability judgment on or enter into any settlement with respect to such Third Party Claim;
(v) the Indemnitor shall not, Claim without the prior written consent of the Indemnitee, Indemnified Party (which consent shall will not be unreasonably withheld, conditioned or delayed, settle ) unless the judgment or compromise proposed settlement involves only the payment of money damages by the Insurer and does not impose an injunction or other equitable relief upon the Indemnified Party or admit liability on the part of any pending or threatened Third Indemnified Party; (v) the Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or shall not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, Claim without the prior written consent of the Indemnitor, such consent Insurer (which will not to be unreasonably withheld, conditioned or delayed.
); and (cvi) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts the Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without the prior consent of Insurer.
(d) Except If the Insurer has not assumed the defense of a Third Party Claim after notice thereof, (i) the Indemnified Party may defend against the Third Party Claim in any manner it reasonably determines to be appropriate; (ii) the Insurer shall reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses allocable to such NYI-4483146v3 66 Third Party Claim) to the extent of a conflict between this Section 9.6 such costs are Losses for which the Indemnified Party is entitled to indemnification hereunder; and Section 6.8(e), in which case Section 6.8(e(iii) the Insurer shall control, remain responsible for any costs the procedures set forth in this Section 9.6 shall apply to any Indemnified Party may incur resulting from the Third Party Claim to the extent such costs are Losses for which the Indemnified Party is entitled to indemnification hereunder. If the Indemnified Party has not assumed the defense of an Uncovered Claim as contemplated by Section 9.2(c)(ii), the Insurer is not responsible in any way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim; provided that is described the Insurer's responsibility for Third Party Claims shall not be altered in Section 6.8(e) (relating to Tax Contests and certain other Tax matters)any way.
Appears in 1 contract
Samples: Definitive Transaction Framework Agreement (General Motors Co)
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Indemnified Party making a claim for indemnification against for Indemnified Claims under Section 9.1 will notify Insurer of each Indemnified Claim in writing promptly after receiving notice of such, describing the Indemnitors Indemnified Claim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail. However, an Indemnified Party’s failure to notify Insurer will not relieve Insurer of its obligations under this Article IX, stating the nature, basis and (to the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder IX except to the extent that (and only to the Indemnitor is prejudiced therebyextent that) such failure caused or would reasonably be expected to cause the indemnifiable Liabilities to be greater than such Liabilities would have been had the Indemnified Party given Insurer prompt notice. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of This Section 9.2 and Section 9.1 will survive the matterClosing Date.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall Insurer will have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense against any Indemnified Claim with counsel of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel its choice reasonably acceptable satisfactory to the Indemnitee, Indemnified Party and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume control the defense of any Third Party such Indemnified Claim.
(c) From and after the date that Insurer has assumed and is conducting the defense of an Indemnified Claim in accordance with Section 9.2(b), the following conditions must be satisfied: (i) each Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice defense of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Indemnified Claim, (ii) each Indemnified Party may retain separate counsel at its sole cost and expense to control the Third defense of any portion of the action, lawsuit, proceeding, investigation, demand or other claim against the Indemnified Party that is not an Indemnified Claim involves solely monetary damages(the “Uncovered Claim”), (iii) Insurer and the Losses that may result from Indemnified Party will cooperate fully with each other and any of their respective counsel in connection with the Third defense, negotiation or settlement of any such Indemnified Claim or (if the Indemnified Party retains counsel for the Uncovered Claim) the Uncovered Claim, along including providing access to any relevant books and records, properties, employees and Representatives, provided, however, that in no event will Insurer be responsible in any way for any Liabilities or Orders resulting such Uncovered Claim and provided further, for avoidance of doubt, the foregoing will not require any Person to waive, or take any action that has the effect of waiving, its attorney-client privilege, attorney work-product or any other applicable privilege with any and all other pending claims against the Indemniteerespect thereto, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall Insurer will not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available consent to the Indemnitor entry of any judgment on or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, enter into any settlement with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Indemnified Claim without the Indemnified Party’s prior written consent of the Indemnitee, (which consent shall will not be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by Insurer and does not impose an injunction or other equitable relief on the Indemnified Party, settle or compromise adversely impact the Plans’ Tax Qualified status, or admit liability on the part of any pending or threatened Third Indemnified Party, (v) the Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or will not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability settlement with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Indemnified Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitorwithout Insurer’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent (which will not to be unreasonably withheld, conditioned or delayed.
) and (cvi) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts the Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without Insurer’s prior consent.
(d) Except If Insurer has not assumed the defense of an Indemnified Claim after receiving notice of the Indemnified Claim, (i) the Indemnified Party may defend against the Indemnified Claim in any manner it reasonably determines to be appropriate, (ii) Insurer will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Indemnified Claim (including reasonable attorneys’ fees and expenses allocable to such Indemnified Claim) to the extent such costs are Liabilities for which the Indemnified Party is entitled to indemnification under this Article IX and (iii) Insurer will remain responsible for any costs the Indemnified Party may incur resulting from the Indemnified Claim to the extent such costs are Liabilities for which the Indemnified Party is entitled to indemnification under this Article IX. If the Indemnified Party has not assumed the defense of a conflict between this an Uncovered Claim as contemplated by Section 9.6 and Section 6.8(e9.2(c), Insurer is not responsible in which case Section 6.8(eany way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim, provided that Insurer’s responsibility for Indemnified Claims will not be altered in any way.
(e) shall control, the procedures set forth Notwithstanding anything in this Section 9.6 shall apply Agreement to the contrary, as between Independent Fiduciary and Company, this Article IX will not be deemed to supersede or extinguish any Third Party Claim that is described in Section 6.8(e) (relating rights of Independent Fiduciary or Company pursuant to Tax Contests and certain other Tax matters)the IF Engagement Letter.
Appears in 1 contract
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Indemnified Party making a claim for indemnification against for Third Party Claims under Section 9.1 shall notify the Indemnitors under this Article IXInsurer of each Third Party Claim in writing promptly after receiving notice of such, stating describing the natureThird Party Claim, the amount thereof (if known and quantifiable) and the basis and (thereof in reasonable detail; provided that, the failure to so notify the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor Insurer shall not relieve the Indemnitor from any obligation Insurer of its obligations hereunder except to the extent that (and only to the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with extent that) such claim failure shall have caused the indemnifiable Losses to be forwarded to Indemnitor together with greater than such Losses would have been had the Indemnified Party given the Insurer prompt notice of the matterhereunder.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor The Insurer shall have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice Claim with counsel of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject its choice reasonably satisfactory to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Indemnified Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume control the defense of such Third Party Claim, unless so long as the Insurer accepts without reservation (Abut without waiver of any rights under Section 9.2(c)) responsibility to indemnify the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to Indemnified Party for such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;.
(iic) From and after the date that the Insurer has assumed and is conducting the defense of a Third Party Claim in accordance with Section 9.2(b), (i) the Indemnitee shall make available to the Indemnitor all booksIndemnified Party may retain separate co-counsel at its sole cost and expense and participate in, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for but not control, the defense of such Third Party Claim;
; (ii) the Indemnified Party may retain counsel at its sole cost and expense to control the defense of any portion of the action, lawsuit, proceeding, investigation, demand or other claim against the Indemnified Party that is not a Third Party Claim (the “Uncovered Claim”); (iii) the Indemnitee Insurer and the Indemnified Party shall otherwise cooperate as reasonably requested by fully with each other and any of their respective counsel in connection with the Indemnitor in the defense defense, negotiation or settlement of any such Third Party Claim or (if the Indemnified Party retains counsel for the Uncovered Claim;
) the Uncovered Claim, including providing access to any relevant books and records, properties, employees and Representatives; provided that, for avoidance of doubt, the foregoing will not require any Person to waive, or take any action which has the affect of waiving, its attorney-client privilege, attorney work-product, or any other applicable privilege with respect thereto; (iv) the Indemnitee Insurer shall not admit consent to the entry of any liability judgment on or enter into any settlement with respect to such Third Party Claim;
(v) the Indemnitor shall not, Claim without the prior written consent of the Indemnitee, Indemnified Party (which consent shall will not be unreasonably withheld, conditioned or delayed, settle ) unless the judgment or compromise proposed settlement involves only the payment of money damages by the Insurer and does not impose an injunction or other equitable relief upon the Indemnified Party or admit liability on the part of any pending or threatened Third Indemnified Party; (v) the Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or shall not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, Claim without the prior written consent of the Indemnitor, such consent Insurer (which will not to be unreasonably withheld, conditioned or delayed.
); and (cvi) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts the Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without the prior consent of Insurer.
(d) Except If the Insurer has not assumed the defense of a Third Party Claim after notice thereof, (i) the Indemnified Party may defend against the Third Party Claim in any manner it reasonably determines to be appropriate; (ii) the Insurer shall reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses allocable to such Third Party Claim) to the extent of a conflict between this Section 9.6 such costs are Losses for which the Indemnified Party is entitled to indemnification hereunder; and Section 6.8(e), in which case Section 6.8(e(iii) the Insurer shall control, remain responsible for any costs the procedures set forth in this Section 9.6 shall apply to any Indemnified Party may incur resulting from the Third Party Claim to the extent such costs are Losses for which the Indemnified Party is entitled to indemnification hereunder. If the Indemnified Party has not assumed the defense of an Uncovered Claim as contemplated by Section 9.2(c)(ii), the Insurer is not responsible in any way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim; provided that is described the Insurer's responsibility for Third Party Claims shall not be altered in Section 6.8(e) (relating to Tax Contests and certain other Tax matters)any way.
Appears in 1 contract
Samples: Definitive Transaction Framework Agreement (General Motors Co)
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Indemnified Party making a claim for indemnification against for Third Party Claims under Section 9.1 shall notify the Indemnitors under this Article IXInsurer of each Third Party Claim in writing promptly after receiving notice of such, stating describing the natureThird Party Claim, the amount thereof (if known and quantifiable) and the basis and (thereof in reasonable detail; provided that, the failure to so notify the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor Insurer shall not relieve the Indemnitor from any obligation Insurer of its obligations hereunder except to the extent that (and only to the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with extent that) such claim failure shall have caused the indemnifiable Losses to be forwarded to Indemnitor together with greater than such Losses would have been had the Indemnified Party given the Insurer prompt notice of the matterhereunder.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor The Insurer shall have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice Claim with counsel of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject its choice reasonably satisfactory to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Indemnified Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume control the defense of such Third Party Claim, unless so long as the Insurer accepts without reservation (Abut without waiver of any rights under Section 9.2(c)) responsibility to indemnify the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to Indemnified Party for such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;.
(iic) From and after the date that the Insurer has assumed and is conducting the defense of a Third Party Claim in accordance with Section 9.2(b), (i) the Indemnitee shall make available to the Indemnitor all booksIndemnified Party may retain separate co-counsel at its sole cost and expense and participate in, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for but not control, the defense of such Third Party Claim;
; (ii) the Indemnified Party may retain counsel at its sole cost and expense to control the defense of any portion of the action, lawsuit, proceeding, investigation, demand or other claim against the Indemnified Party that is not a Third Party Claim (the “Uncovered Claim”); (iii) the Indemnitee Insurer and the Indemnified Party shall otherwise cooperate as reasonably requested by fully with each other and any of their respective counsel in connection with the Indemnitor in the defense defense, negotiation or settlement of any such Third Party Claim or (if the Indemnified Party retains counsel for the Uncovered Claim;
) the Uncovered Claim, including providing access to any relevant books and records, properties, employees and Representatives; provided that, for avoidance of doubt, the foregoing will not require any Person to waive, or take any action which has the affect of waiving, its attorney-client privilege, attorney work-product, or any other applicable privilege with respect thereto; (iv) the Indemnitee Insurer shall not admit consent to the entry of any liability judgment on or enter into any settlement with respect to such Third Party Claim;
(v) the Indemnitor shall not, Claim without the prior written consent of the Indemnitee, Indemnified Party (which consent shall will not be unreasonably withheld, conditioned or delayed, settle ) unless the judgment or compromise proposed settlement involves only the payment of money damages by the Insurer and does not impose an injunction or other equitable relief upon the Indemnified Party or admit liability on the part of any pending or threatened Third Indemnified Party; (v) the Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or shall not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, Claim without the prior written consent of the Indemnitor, such consent Insurer (which will not to be unreasonably withheld, conditioned or delayed.
); and (cvi) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts the Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without the prior consent of Insurer.
(d) Except If the Insurer has not assumed the defense of a Third Party Claim after notice thereof, (i) the Indemnified Party may defend against the Third Party Claim in any manner it reasonably determines to be appropriate; (ii) the Insurer shall reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses allocable to such Third Party Claim) to the extent of a conflict between this Section 9.6 such costs are Losses for which the Indemnified Party is entitled to indemnification hereunder; and Section 6.8(e), in which case Section 6.8(e(iii) the Insurer shall control, remain responsible for any costs the procedures set forth in this Section 9.6 shall apply to any Indemnified Party may incur resulting from the Third Party Claim to the extent such costs are Losses for which the Indemnified Party is entitled to indemnification hereunder. If the Indemnified Party has not assumed the defense of an Uncovered Claim as contemplated by Section 9.2(c)(ii), the Insurer is not responsible in any way for any 57 Liabilities or Orders resulting from not responding to or defending such Uncovered Claim; provided that is described the Insurer's responsibility for Third Party Claims shall not be altered in Section 6.8(e) (relating to Tax Contests and certain other Tax matters)any way.
Appears in 1 contract
Samples: Transaction Framework Agreement (General Motors Co)
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Company Indemnified Party making a claim for indemnification against for Company Indemnified Claims under Section 9.02 will notify the Indemnitors under this Article IXInsurer of each Company Indemnified Claim in writing promptly after receiving notice of such, stating describing the natureCompany Indemnified Claim, the amount thereof (if known and quantifiable) and the basis and (to the extent known) amount thereofthereof in reasonable detail; provided, however, that no delay the failure to notify the Insurer will affect the rights of a Company Indemnified Party hereunder only if, and to the extent, such failure has an actual material prejudicial effect on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except Insurer’s Liabilities with respect to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matterclaim.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall The Insurer will have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense against any Company Indemnified Claim with counsel of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel its choice reasonably acceptable satisfactory to the Indemnitee, Company Indemnified Party and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume control the defense of any Third Party such Company Indemnified Claim.
(c) From and after the date that the Insurer has assumed and is conducting the defense of a Company Indemnified Claim in accordance with Section 9.03(b), the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writingCompany Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, within thirty (30) calendar days after receiving notice but not control, the defense of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Company - 42 – ***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION*** Indemnified Claim, (ii) the Third Company Indemnified Party may retain counsel at its sole cost and expense to control the defense of any portion of the Action, demand or other claim against the Company Indemnified Party that is not a Company Indemnified Claim involves solely monetary damages(the “Uncovered Claim”), (iii) the Losses that may result from Insurer and the Third Company Indemnified Party will cooperate fully with each other and any of their respective counsel in connection with the defense, negotiation or settlement of any such Company Indemnified Claim or (if the Company Indemnified Party retains counsel for the Uncovered Claim) the Uncovered Claim, along including providing access to any relevant books and records, properties, employees and Representatives; provided, however, that in no event will Insurer be responsible in any way for any Liabilities or Orders resulting from such Uncovered Claim; provided, further, that for avoidance of doubt, the foregoing will not require any Person to waive, or take any action which has the effect of waiving, its attorney-client privilege, attorney work-product, or any other applicable privilege with any and all other pending claims against the Indemniteerespect thereto, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall Insurer will not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available consent to the Indemnitor entry of any judgment on or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, enter into any settlement with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Company Indemnified Claim without the prior written consent of the Indemnitee, Company Indemnified Party (which consent shall will not be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by the Insurer, settle and either does not impose an injunction or compromise other equitable relief upon the Company Indemnified Party, or adversely impact the Tax Qualified status of the Plan, or admits liability on the part of any pending or threatened Third Company Indemnified Party, (v) the Company Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or will not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability settlement with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Company Indemnified Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent Insurer (which will not to be unreasonably withheld, conditioned or delayed.
(c) The Indemnitee shall), and shall cause its Affiliates to, use commercially reasonable efforts (vi) the Company Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without the prior consent of the Insurer.
(d) Except If the Insurer has not assumed the defense of a Company Indemnified Claim after notice thereof, (i) the Company Indemnified Party may defend against the Company Indemnified Claim in any manner it reasonably determines to be appropriate, (ii) the Insurer will reimburse the Company Indemnified Party promptly and periodically for the costs of defending against the Company Indemnified Claim (including prompt payment of reasonable attorneys’ fees and expenses allocable to such Company Indemnified Claim) to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder and (iii) the Insurer will remain responsible for any costs the Company Indemnified Party may incur resulting from the Company Indemnified Claim to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder. If the Company Indemnified Party has not assumed the defense of a conflict between this an Uncovered Claim as contemplated by Section 9.6 and Section 6.8(e9.03(c)(ii), the Insurer is not responsible in which case Section 6.8(e) shall controlany way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim; provided, however, that the procedures set forth Insurer’s responsibility for Company Indemnified Claims will not be altered in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters).way. - 43 – ***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION***
Appears in 1 contract
Samples: Definitive Purchase Agreement (Kimberly Clark Corp)
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder Person making a claim for indemnification under Section 8.02 or Section 8.03, as applicable (an “Indemnified Party”), must give the indemnifying Party (the “IndemniteeIndemnifying Party”) shall promptly notify written notice of such claim describing, in writing reasonable detail, such claim, the party basis therefor and the nature and amount, or parties who may be providing indemnity hereunder anticipated amount, of the Loss, to the extent that the nature and amount thereof are determinable in good faith at such time (the a “IndemnitorsClaim Notice”) promptly (but in no event later than fifteen (15) days) after the Indemnified Party (i) receives notice from a third party with respect to any matter of which the Indemnitee becomes aware which may give rise to a claim for indemnification under Section 8.02 or Section 8.03, as applicable, against the Indemnitors under this Article IX, stating the nature, basis and (to the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matter.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall have the right to participate in, or by giving written notice to the Indemnitee, to assume the defense of any matter Indemnifying Party (a “Third Party Claim”) which may give or (ii) otherwise discovers the liability, obligation or facts giving rise to a such claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defenseindemnification; provided, thatthat the failure to notify or delay in notifying the Indemnifying Party will not relieve the Indemnifying Party of its obligations under Section 8.02 or Section 8.03, in order as applicable, except to assume the extent such failure shall have materially prejudiced the defense of any such claim.
(b) In the event of a Third Party Claim, the following conditions must be satisfied: Indemnified Party shall deliver to the Indemnifying Party, promptly (ibut in no event later than fifteen (15) days) after the Indemnitor shall have confirmed in writingIndemnified Party’s receipt thereof, within thirty copies of all notices and documents (30including court papers) calendar days after receiving notice of received by the Indemnified Party relating to such Third Party Claim; provided, however, that it is assuming the failure by the Indemnified Party to so provide copies within such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify fifteen (subject 15) day period to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Indemnifying Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not relieve the Indemnifying Party from any liability to the Indemnified Party for any liability hereunder except to the extent that such failure shall have assumed materially prejudiced the defense of such Third Party Claim Claim. The Indemnifying Party shall have the right, at its option, to assume and control the defense of, and negotiate, settle and otherwise deal with, any Third Party Claim; provided, that (i) the Indemnified Party may participate in accordance the defense of such claim, at its own expense, with co-counsel of its choice to the terms extent that the Indemnified Party believes in its sole discretion that such matter shall affect its ongoing business and (ii) the Indemnifying Party shall not, without the prior written consent of the Representation and Warranty Insurance Policy. IfIndemnified Party (not to be unreasonably withheld, upon providing such acknowledgmentconditioned or delayed), consent to the Indemnitor elects entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto; provided, further, however, that Indemnifying Party shall not have the right to assume the defense of, negotiate, settle or otherwise deal with any Third Party Claim if (A) the third party seeks non-monetary relief (other than non-monetary relief that is incidental to monetary relief as the primary relief sought and would not impose material limitations or restrictions (including any limitations or restrictions on the operation of the Indemnified Party’s or any of its Affiliates’ businesses or operations) on the Indemnified Party or any of its Affiliates), (B) such Third Party Claim as aforesaidinvolves criminal or quasi-criminal allegations, then:
(iC) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment insurer is entitled, and election elects, to assume the defense of such Third Party Claim, unless (AD) it involved a claim to which an adverse determination would be materially detrimental to or materially injure the Indemnified Party’s or any of its Affiliates’ reputation or future business prospects or (E) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (Indemnified Party determines based upon good faith advice of its counsel) outside legal counsel that there may be one or more a conflict of interest exists which, under applicable principles of legal defenses available to such Indemnitee or other Indemnitees that are not available to ethics, would prohibit a single legal counsel from representing both the Indemnitor or (C) Indemnified Party and the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to Indemnifying Party in such Third Party Claim. Notwithstanding anything to the contrary herein, the Indemnitee Indemnifying Party may only assume and control the Indemnitor may have differentdefense of, conflictingand negotiate, or adverse legal positions or interests;
(ii) the Indemnitee shall make available settle and otherwise deal with such Third Party Claim if it acknowledges in writing to the Indemnitor all books, records and other documents and materials Indemnified Party that are under any Losses that may be assessed against the direct or indirect control of Indemnified Party in connection with such Third-Party Claim shall constitute Losses for which the Indemnitee or any of Indemnified Party shall be indemnified by the Indemnitee’s agents and that Indemnifying Party pursuant to this Article 8. If the Indemnitor considers necessary or desirable for Indemnifying Party shall not have elected to assume the defense of such Third Party Claim;
Claim within thirty (iii30) days of receipt of the Claim Notice (or such earlier time that such Third Party Claim is required to be defended pursuant to any time period mandated by any court, arbitrator or contractual obligation), or is not entitled to assume such defense pursuant to this Section 8.04(b), the Indemnified Party may defend against such Third Party Claim in any manner that it reasonably may deem appropriate and at the Indemnifying Party’s expense; provided, that (i) the Indemnitee Indemnifying Party shall otherwise cooperate as reasonably requested by have the Indemnitor in right to assume the defense of such Third Party Claim;
Claim at any time thereafter, subject to the limitations set forth in this Section 8.04, and (ivii) the Indemnitee Indemnified Party shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, without the written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, settle or compromise any pending or threatened Third Party Claim in respect of which indemnification may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, Claim or enter into any settlement with respect to such Third Party Claim without the prior written consent of the Indemnitor, such consent Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). The Indemnifying Party shall be entitled to participate in (but not to control) the defense of any Third Party Claim that it has not elected to defend or that it is not entitled to defend with its own counsel and at its own expense. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with the defense, negotiation or settlement of any Third Party Claim.
(c) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts to pursue In the event any claims for insurance Indemnified Party delivers a Claim Notice in accordance with Section 8.04(a) with respect to any claims a claim for indemnification under Section 8.02 or Losses for which it is seeking indemnification hereunder.
(d) Except to the extent of a conflict between this Section 9.6 and Section 6.8(e), in which case Section 6.8(e) shall control8.03, the procedures set Indemnifying Party shall have thirty (30) days after its receipt of such Claim Notice to deliver a written notice setting forth the Indemnifying Party’s objections to such claim and the Indemnifying Party’s reasons for such objection (a “Dispute Notice”). If the Indemnifying Party timely delivers a Dispute Notice, then the Indemnified Party and the Indemnifying Party shall negotiate in this Section 9.6 shall apply good faith for a period of at least thirty (30) days from the date the Indemnified Party receives such Dispute Notice (such period, the “Negotiation Period”). After the Negotiation Period, if the Indemnified Party and the Indemnifying Party still cannot agree on the claim, the Indemnified Party may, at any time thereafter, until the expiration of the applicable statute of limitations with respect to its claim for indemnification, commence an Action against the Indemnifying Party to enforce its rights to indemnification from and against any Third Party Claim that is Losses described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters)the Claim Notice.
Appears in 1 contract
Samples: Stock Purchase Agreement (Dole PLC)
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Company Indemnified Party making a claim for indemnification against for Company Indemnified Claims under Section 7.2 will notify the Indemnitors under this Article IXInsurer of each Company Indemnified Claim in writing promptly after receiving notice of such, stating describing the natureCompany Indemnified Claim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail; provided, however, that the failure to notify the Insurer will affect the rights of a Company Indemnified Party hereunder only if and (to the extent known) amount thereof; provided, that no delay such failure has an actual prejudicial effect on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except Insurer with respect to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matterclaim.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall The Insurer will have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense against any Company Indemnified Claim with counsel of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel its choice reasonably acceptable satisfactory to the Indemnitee, Company Indemnified Party and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume control the defense of any Third Party such Company Indemnified Claim.
(c) From and after the date that the Insurer has assumed and is conducting the defense of a Company Indemnified Claim in accordance with Section 7.3(b), the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writingCompany Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, within thirty (30) calendar days after receiving notice but not control, the defense of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Company Indemnified Claim, (ii) the Third Company Indemnified Party may retain counsel at its sole cost and expense to control the defense of any portion of the Action, demand or other claim against the Company Indemnified Party that is not a Company Indemnified Claim involves solely monetary damages(the “Uncovered Claim”), (iii) the Losses that may result from Insurer and the Third Company Indemnified Party will cooperate fully with each other and any of their respective counsel in connection with the defense, negotiation or NAI-1500837614v2 settlement of any such Company Indemnified Claim or (if the Company Indemnified Party retains counsel for the Uncovered Claim) the Uncovered Claim, along including providing access to any relevant books and records, properties, employees and Representatives; provided, however, that for avoidance of doubt, the foregoing will not require any Person to waive, or take any action which has the effect of waiving, its attorney-client privilege, attorney work-product, or any other applicable privilege with any and all other pending claims against the Indemniteerespect thereto, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall Insurer will not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available consent to the Indemnitor entry of any judgment on or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, enter into any settlement with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Company Indemnified Claim without the prior written consent of the Indemnitee, Company Indemnified Party (which consent shall will not be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by the Insurer and does not impose an injunction or other equitable relief upon the Company Indemnified Party, settle or compromise adversely impact the Tax Qualified status of the Plan, or admit liability on the part of any pending or threatened Third Company Indemnified Party, (v) the Company Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or will not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability settlement with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Company Indemnified Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent Insurer (which will not to be unreasonably withheld, conditioned or delayed.
(c) The Indemnitee shall), and shall cause its Affiliates to, use commercially reasonable efforts (vi) the Company Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without the prior consent of the Insurer.
(d) Except If the Insurer has not assumed the defense of a Company Indemnified Claim after notice thereof, (i) the Company Indemnified Party may defend against the Company Indemnified Claim in any manner it reasonably determines to be appropriate, (ii) the Insurer will reimburse the Company Indemnified Party promptly and periodically for the costs of defending against the Company Indemnified Claim (including reasonable attorneys’ fees and expenses allocable to such Company Indemnified Claim) to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder and (iii) the Insurer will remain responsible for any costs the Company Indemnified Party may incur resulting from the Company Indemnified Claim to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder. If the Company Indemnified Party has not assumed the defense of a conflict between this an Uncovered Claim as contemplated by Section 9.6 and Section 6.8(e7.3(c)(ii), the Insurer is not responsible in which case Section 6.8(e) shall controlany way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim; provided, however, that the procedures set forth Insurer’s responsibility for Company Indemnified Claims will not be altered in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters)way.
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Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party If a claim, action, suit or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to a claim for indemnification against the Indemnitors under this Article IX, stating the nature, basis and (to the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matter.
(b) In case of any Legal Proceeding proceeding by a third party Person who is not a Party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall have the right to participate in, or by giving written notice to the Indemnitee, to assume the defense of any matter an Affiliate thereof (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee made against any Losses that may result from the Third Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected Person entitled to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects pursuant to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, ARTICLE X hereof with respect to such Third Party Claim (the “Indemnified Party”), and if such Person intends to seek indemnity with respect thereto under this ARTICLE X, then such Indemnified Party shall promptly (but not more than fifteen (15) Business Days) after receipt by the Indemnified Party of notice of the Third Party Claim, give notice thereof (the Indemnitee “Notice of Claim”) to the Party obligated to indemnify such Indemnified Party hereunder (in each case, such notified Party, the “Responsible Party”); provided, that the failure to so (timely) notify shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually and materially prejudiced thereby (including, without limitation, being deprived or limited in its right or ability to recover any payment under its applicable insurance coverage). Such Notice of Claim shall describe the Indemnitor may have different, conflicting, or adverse legal positions or interests;
Third Party Claim in reasonable detail and shall identify with reasonable specificity (iibased on the information then known) the Indemnitee shall make available basis under which indemnification is sought pursuant to ARTICLE X (including the sections of this Agreement that are the subject of the breach giving rise thereto, and whether the Damages at issue are liquidated in nature), and enclose true and correct copies of any written document furnished to the Indemnitor all booksIndemnified Party by the Person that instituted the Third Party Claim. The Responsible Party shall have thirty (30) days after receipt of such Notice of Claim to assume the conduct and control, records and other documents and materials that are under through counsel reasonably acceptable to the direct or indirect control Indemnified Party at the expense of the Indemnitee or any Responsible Party, of the Indemnitee’s agents and settlement or defense thereof; provided, that the Indemnitor considers necessary Responsible Party shall permit the Indemnified Party to participate in such settlement or desirable for defense through counsel chosen by such Indemnified Party (the defense fees and expenses of such counsel shall be borne by such Indemnified Party). The Responsible Party shall not enter into any settlement of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Claim without the written consent of the Indemnitee, Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement (i) includes as an unconditional term thereof the giving by the Person(s) asserting such Third Party Claim to the Indemnified Party of an unconditional release from all liability with respect to such claim, (ii) does not provide for any Damages or obligations of the Indemnified Party other than Damages indemnifiable hereunder, (iii) does not involve any limitation on any future operations of the Indemnified Party; (iv) does not affect in a manner materially and adverse to the Indemnified Party any other existing Third Party Claim, and (v) provides solely for the payment of money by the Responsible Party. The Indemnified Party shall not pay or settle any such Third Party Claim without the prior written consent of the Responsible Party. If the Responsible Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s Notice of Claim hereunder that it elects to undertake the defense or compromise settlement thereof, the Indemnified Party shall have the right to assume the conduct and control, at the expense of the Indemnified Party, of the settlement and defense of such Third Party Claim (subject to the limitations set forth herein).
(b) Notwithstanding anything contained in this Section 10.05 to the contrary, the Responsible Party shall only be entitled to control, and the Indemnified Party shall only be entitled to have sole control over, the defense or settlement of any pending Third Party Claim if each of the following conditions are satisfied:
(i) the Responsible Party must acknowledge in writing that it shall be responsible for all Damages relating to such Action (subject to the limitations contained in this ARTICLE X);
(ii) the Responsible Party must diligently defend or threatened seek to settle such Third Party Claim;
(iii) such proceeding shall not involve criminal actions or allegations of criminal conduct by the Indemnified Party, involve any customer or supplier of the Business or seek any remedy other than monetary damages; and
(iv) there does not exist, based on the advice of outside legal counsel of the Responsible Party, a conflict of interest which, under applicable principles of legal ethics, would reasonably be expected to prohibit a single legal counsel from representing both the Indemnified Party and the Responsible Party in such proceeding.
(c) All of the applicable Parties shall reasonably cooperate in the defense or prosecution of any Third Party Claim in respect of which indemnification indemnity may be sought hereunder and the Buyers and Sellers (whether or not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect duly authorized representative of such Third Party ClaimParties) shall furnish such records, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially information and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitortestimony, and (iii) the terms of attend such settlement are not reasonably expected to affect the Taxes of the Companiesconferences, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense ofdiscovery proceedings, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6hearings, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel trials and at its own expenseappeals, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall as may be reasonably satisfactory to Indemnitor and shall act reasonably and requested in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent not to be unreasonably withheld, conditioned or delayedconnection therewith.
(c) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts to pursue any claims for insurance with respect to any claims or Losses for which it is seeking indemnification hereunder.
(d) Except to the extent of a conflict between this Section 9.6 and Section 6.8(e), in which case Section 6.8(e) shall control, the procedures set forth in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters).
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Procedures for Indemnification Claims. (a) Any 1. The party seeking indemnity hereunder indemnification under Section VIII (the “IndemniteeIndemnified Party”) shall promptly notify give prompt notice (in writing accordance with Section IX(D)) to the party or parties who may be providing against whom indemnity hereunder is sought (the “IndemnitorsIndemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought under Section VIII (the “Claims”). Such notice referred to in the preceding sentence shall state the relevant facts and include therewith relevant documents and a statement in reasonable detail as to the basis for the indemnification sought. The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieve any Indemnifying Party from any liability which it may have to such Indemnified Party with respect to any matter of which the Indemnitee becomes aware which may give rise Claims made pursuant to a claim for indemnification against the Indemnitors under this Article IXSection VIII, stating the nature, basis and (to the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim failure shall be forwarded to Indemnitor together with such notice of the matteractually prejudice an Indemnifying Party.
(b) In case 2. Upon receipt of any Legal Proceeding by a third party or by any Governmental Authoritynotice from the Indemnified Party pursuant to Section IX(D), or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect the Indemnifying Party will have the right to, subject to which Indemnitor may have Liability under the indemnification provisions of this Article IXSection VIII(D)(3), assume the defense and control of such Claims. In the event the Indemnifying Party assumes the defense of a Claim, the Indemnitor Indemnified Party shall have the right but not the obligation to participate in, or by giving written notice to the Indemnitee, to assume the defense of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim with their own counsel and at their own expense (except as provided in accordance VIII(D)(3)) and the Indemnifying Party will cooperate with the terms Indemnified Party. Any election by an Indemnifying Party not to assume the defense of a Claim must be received by the Indemnified Party reasonably promptly following its receipt of the Representation and Warranty Insurance PolicyIndemnified Party’s notice delivered pursuant to Section IX(D). If, upon providing such acknowledgment, If the Indemnitor Indemnifying Party elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to such Third Party a Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee Indemnifying Party shall make available select counsel reasonably acceptable to the Indemnitor Indemnified Party; shall take all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers steps necessary or desirable for in the defense or settlement of such Third Claims; and shall at all times diligently and promptly pursue the resolution of such Claims. The Indemnified Party Claim;
(iii) shall, and shall cause each of their affiliates and representatives to, cooperate fully with the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor Indemnifying Party in the defense of such Third any Claim defended by the Indemnifying Party.
3. The Indemnifying Party Claim;
(iv) the Indemnitee shall not admit be liable for any liability with respect settlement of a Claim effected without its consent (such consent not to such Third be unreasonably withheld). No Indemnifying Party Claim;
(v) the Indemnitor shall notshall, without the written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, settle or compromise any pending or threatened Third Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent not to be unreasonably withheld), conditioned effect any settlement of any pending or delayedthreatened proceeding in respect of which any Indemnified Party is a party and indemnification is being sought hereunder by such Indemnified Party, unless such settlement:
(a) Includes an unconditional release of such Indemnified Party, in form and substance reasonably satisfactory to such Indemnified Party, from all liability on claims that are the subject matter of such settlement; and
(b) Does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.
(c) The Indemnitee shall4. All indemnification payments payable hereunder shall be reduced by the amount of insurance proceeds received by, or any tax benefits inuring to the benefit of, the Indemnified Party as a result of the loss for which the Indemnified Party is seeking reimbursement.
5. Without prejudice to the rights of the parties under this Section VIII, the parties hereto expressly acknowledge that the provisions of this Section VIII shall be the sole and shall cause its Affiliates to, use commercially reasonable efforts to pursue any claims for insurance exclusive remedy with respect to any claims or Losses for which it is seeking indemnification hereunder.
(d) Except to Damages arising from the extent of a conflict between this Section 9.6 and Section 6.8(e), in which case Section 6.8(e) shall control, the procedures set forth in this Section 9.6 shall apply to any Third Party Claim that is matters described in Section 6.8(e) (relating to Tax Contests and certain VIII of this Agreement or any other Tax matters)provisions hereof.
Appears in 1 contract
Samples: Replacement Carrier Agreement (National Atlantic Holdings Corp)
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Company Indemnified Party making a claim for indemnification against for Company Indemnified Claims under Section 9.02 will notify the Indemnitors under this Article IXInsurer of each Company Indemnified Claim in writing promptly after receiving notice of such, stating describing the natureCompany Indemnified Claim, the amount thereof (if known and quantifiable) and the basis and (to the extent known) amount thereofthereof in reasonable detail; provided, however, that no delay the failure to notify the Insurer will affect the rights of a Company Indemnified Party hereunder only if, and to the extent, such failure has an actual material prejudicial effect on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except Insurer’s Liabilities with respect to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matterclaim.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall The Insurer will have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense against any Company Indemnified Claim with counsel of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel its choice reasonably acceptable satisfactory to the Indemnitee, Company Indemnified Party and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume control the defense of any Third Party such Company Indemnified Claim.
(c) From and after the date that the Insurer has assumed and is conducting the defense of a Company Indemnified Claim in accordance with Section 9.03(b), the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writingCompany Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, within thirty (30) calendar days after receiving notice but not control, the defense of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Company Indemnified Claim, (ii) the Third Company Indemnified Party may retain counsel at its sole cost and expense to control the defense of any portion of the Action, demand or other claim against the Company Indemnified Party that is not a Company Indemnified Claim involves solely monetary damages(the “Uncovered Claim”), (iii) the Losses that may result from Insurer and the Third Company Indemnified Party will cooperate fully with each other and any of their respective counsel in connection with the defense, negotiation or settlement of any such Company Indemnified Claim or (if the Company Indemnified Party retains counsel for the Uncovered Claim) the Uncovered Claim, along including providing access to any relevant books and records, properties, employees and Representatives; provided, however, that in no event will Insurer be responsible in any way for any Liabilities or Orders resulting from such Uncovered Claim; provided, further, that for avoidance of doubt, the foregoing will not require any Person to waive, or take any action which has the effect of waiving, its attorney-client privilege, attorney work-product, or any other applicable privilege with any and all other pending claims against the Indemniteerespect thereto, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall Insurer will not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available consent to the Indemnitor entry of any judgment on or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, enter into any settlement with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Company Indemnified Claim without the prior written consent of the Indemnitee, Company Indemnified Party (which consent shall will not be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by the Insurer, settle and either does not impose an injunction or compromise other equitable relief upon the Company Indemnified Party, or adversely impact the Tax Qualified status of the Plan, or admits liability on the part of any pending or threatened Third Company Indemnified Party, (v) the Company Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or will not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability settlement with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Company Indemnified Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent Insurer (which will not to be unreasonably withheld, conditioned or delayed.
(c) The Indemnitee shall), and shall cause its Affiliates to, use commercially reasonable efforts (vi) the Company Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without the prior consent of the Insurer.
(d) Except If the Insurer has not assumed the defense of a Company Indemnified Claim after notice thereof, (i) the Company Indemnified Party may defend against the Company Indemnified Claim in any manner it reasonably determines to be appropriate, (ii) the Insurer will reimburse the Company Indemnified Party promptly and periodically for the costs of defending against the Company Indemnified Claim (including prompt payment of reasonable attorneys’ fees and expenses allocable to such Company Indemnified Claim) to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder and (iii) the Insurer will remain responsible for any costs the Company Indemnified Party may incur resulting from the Company Indemnified Claim to the extent such costs are Liabilities for which the Company Indemnified Party is entitled to indemnification hereunder. If the Company Indemnified Party has not assumed the defense of a conflict between this an Uncovered Claim as contemplated by Section 9.6 and Section 6.8(e9.03(c)(ii), the Insurer is not responsible in which case Section 6.8(e) shall controlany way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim; provided, however, that the procedures set forth Insurer’s responsibility for Company Indemnified Claims will not be altered in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters)way.
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Samples: Definitive Purchase Agreement (Kimberly Clark Corp)
Procedures for Indemnification Claims. (a) Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Indemnified Party making a claim for indemnification against for Indemnified Claims under Section 9.1 will notify Insurer of each Indemnified Claim in writing promptly after receiving notice of such, describing the Indemnitors Indemnified Claim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail. However, an Indemnified Party’s failure to notify Insurer will not relieve Insurer of its obligations under this Article IX, stating the nature, basis and (to the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder IX except to the extent that (and only to the Indemnitor is prejudiced therebyextent that) such failure caused or would reasonably be expected to cause the indemnifiable Liabilities to be greater than such Liabilities would have been had the Indemnified Party given Insurer prompt notice. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of This Section 9.2 and Section 9.1 will survive the matterClosing Date.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall Insurer will have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense against any Indemnified Claim with counsel of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel its choice reasonably acceptable satisfactory to the Indemnitee, Indemnified Party and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume control the defense of any Third Party such Indemnified Claim.
(c) From and after the date that Insurer has assumed and is conducting the defense of an Indemnified Claim in accordance with Section 9.2(b), the following conditions must be satisfied: (i) each Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice defense of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Indemnified Claim, (ii) each Indemnified Party may retain separate counsel at its sole cost and expense to control the Third defense of any portion of the action, lawsuit, proceeding, investigation, demand or other claim against the Indemnified Party that is not an Indemnified Claim involves solely monetary damages(the “Uncovered Claim”), (iii) Insurer and the Losses that may result from Indemnified Party will cooperate fully with each other and any of their respective counsel in connection with the Third defense, negotiation or settlement of any such Indemnified Claim or (if the Indemnified Party retains counsel for the Uncovered Claim) the Uncovered Claim, along including providing access to any relevant books and records, properties, employees and Representatives, provided that, for avoidance of doubt, the foregoing will not require any Person to waive, or take any action that has the effect of waiving, its attorney-client privilege, attorney work-product or any other applicable privilege with any and all other pending claims against the Indemniteerespect thereto, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall Insurer will not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available consent to the Indemnitor entry of any judgment on or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, enter into any settlement with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Indemnified Claim without the Indemnified Party’s prior written consent of the Indemnitee, (which consent shall will not be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement involves only the payment of money damages by Insurer and does not impose an injunction or other equitable relief on the Indemnified Party, settle or compromise adversely impact the Plans’ Tax Qualified status, or admit liability on the part of any pending or threatened Third Indemnified Party, (v) the Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or will not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability settlement with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Indemnified Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitorwithout Insurer’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent (which will not to be unreasonably withheld, conditioned or delayed.
) and (cvi) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts the Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without Insurer’s prior consent.
(d) Except If Insurer has not assumed the defense of an Indemnified Claim after receiving notice of the Indemnified Claim, (i) the Indemnified Party may defend against the Indemnified Claim in any manner it reasonably determines to be appropriate, (ii) Insurer will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Indemnified Claim (including reasonable attorneys’ fees and expenses allocable to such Indemnified Claim) to the extent such costs are Liabilities for which the Indemnified Party is entitled to indemnification under this Article IX and (iii) Insurer will remain responsible for any costs the Indemnified Party may incur resulting from the Indemnified Claim to the extent such costs are Liabilities for which the Indemnified Party is entitled to indemnification under this Article IX. If the Indemnified Party has not assumed the defense of a conflict between this an Uncovered Claim as contemplated by Section 9.6 and Section 6.8(e9.2(c), Insurer is not responsible in which case Section 6.8(eany way for any Liabilities or Orders resulting from not responding to or defending such Uncovered Claim, provided that Insurer’s responsibility for Indemnified Claims will not be altered in any way.
(e) shall control, the procedures set forth Notwithstanding anything in this Section 9.6 shall apply Agreement to the contrary, this Article IX will not be deemed to supersede or extinguish any Third Party Claim that is described in Section 6.8(e) (relating rights of Independent Fiduciary or Company pursuant to Tax Contests and certain other Tax matters)the IF Engagement Letter.
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Procedures for Indemnification Claims. 11.6.1. In the event that any claim shall be asserted against any Indemnified Party which, if sustained, would result in such Indemnified Party suffering a Loss, such Indemnified Party shall, within fifteen (a15) Any party seeking indemnity hereunder (days after learning of such claim, notify the “Indemnitee”applicable Indemnifying Party(ies) of the existence, nature and amount of such claim and shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to a claim for indemnification against the Indemnitors under this Article IX, stating the nature, basis and (extend to the extent knownapplicable Indemnifying Party(ies) amount thereofa reasonable opportunity to defend against such claim at the Indemnifying Party(ies)’ sole expense and through legal counsel satisfactory to the Indemnified Party, such satisfaction not to be withheld or delayed unreasonably; provided, that no delay on the part Indemnifying Party(ies) proceed in good faith, expeditiously and diligently. No effort to recover the amount of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except Losses related to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together made by an Indemnified Party while such defense is still being made until the earlier of (a) the resolution of said claim by the applicable Indemnifying Party(ies) with such notice of the matter.
claimant, or (b) In case the termination of any Legal Proceeding the defense by a third party the applicable Indemnifying Party(ies) against such claim or by any Governmental Authoritythe failure of the Indemnifying Party(ies) to prosecute such defense in good faith in an expeditious and diligent manner. Any Indemnified Party shall, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IXat its option and sole expense, the Indemnitor shall have the right to participate in, in any defense undertaken by any applicable Indemnifying Party(ies) with legal counsel of its own selection. No settlement or by giving written notice to the Indemnitee, to assume the defense compromise of any matter (a “Third Party Claim”) claim which may give rise to result in a claim for indemnification against the Indemnitor at the Indemnitor’s expense and Loss may be made by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (iIndemnifying Party(ies) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, without the written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, settle or compromise any pending or threatened Third Party Claim in respect of which indemnification may be sought hereunder (whether or not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or any of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the IndemnitorIndemnified Party unless, prior to such settlement or compromise, the Indemnifying Party(ies) acknowledge in writing their obligation to pay in full the amount of the settlement or compromise and all associated expenses and the Indemnified Party is furnished with security reasonably satisfactory to the Indemnified Party that the applicable Indemnifying Party(ies) will in fact pay such amount and expenses.
11.6.2. Any Indemnified Party and Indemnifying Party(ies) may agree in writing, at any time, as to the existence and amount of a claim and the resulting Loss attributable thereto and, upon the execution of such agreement, such consent not to claim and Loss shall be unreasonably withheld, conditioned or delayeddeemed established.
(c) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts to pursue any claims for insurance with respect to any claims or Losses for which it is seeking indemnification hereunder.
(d) Except to the extent of a conflict between this Section 9.6 and Section 6.8(e), in which case Section 6.8(e) shall control, the procedures set forth in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters).
Appears in 1 contract
Procedures for Indemnification Claims. (a) i. Any party seeking indemnity hereunder (the “Indemnitee”) shall promptly notify in writing the party or parties who may be providing indemnity hereunder (the “Indemnitors”) with respect to any matter of which the Indemnitee becomes aware which may give rise to Indemnified Party making a claim for indemnification against the Indemnitors for Indemnified Claims under this Article IXparagraph 9 will notify Insurer of each Indemnified Claim in writing, stating promptly after receiving notice of such, describing the natureIndemnified Claim, the amount thereof (if known and quantifiable) and the basis and (thereof in reasonable detail. However, an Indemnified Party’s failure to the extent known) amount thereof; provided, that no delay on the part notify Insurer will not relieve Insurer of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder its obligations under this paragraph 9 except to the extent that (and only to the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with extent that) such claim shall failure caused or would reasonably be forwarded expected to Indemnitor together with cause, the indemnifiable liabilities to be greater than such notice of liabilities would have been had the matterIndemnified Party given Insurer prompt notice.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall ii. Insurer will have the right to participate in, or by giving written notice to the Indemnitee, at any time to assume the defense against any Indemnified Claim with counsel of any matter choice reasonably satisfactory to the Indemnified Party and control the defense of such Indemnified Claim.
iii. From and after the date that Insurer has assumed and is conducting the defense of an Indemnified Claim in accordance with paragraph 9.a.ii, (a “Third 1) each Indemnified Party Claim”) which may give rise to a claim for indemnification against the Indemnitor retain separate co-counsel at the Indemnitor’s its sole cost and expense and by participate in, but not control, the Indemnitor’s own defense of such Indemnified Claim, (2) each Indemnified Party may retain separate counsel reasonably acceptable at its sole cost and expense to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume control the defense of any Third portion of the action, lawsuit, proceeding, investigation, demand or other claim against the Indemnified Party that is not an Indemnified Claim (the “Uncovered Claim”), the following conditions must be satisfied: (i3) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice of such Third Party Claim, that it is assuming such defense Insurer and the Indemnitor’s irrevocable Indemnified Party will cooperate fully with each other and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee their respective counsel in connection with the defense, negotiation or settlement of any such Third Indemnified Claim or (if the Indemnified Party Claim following retains counsel for the Indemnitor’s acknowledgment and election to assume Uncovered Claim) the defense of such Third Party Uncovered Claim, unless (A) including providing access to any relevant books and records, properties, employees and representatives, provided that, for avoidance of doubt, the Indemnitor fails foregoing will not require any person to defend diligently waive, or take any action that has the action effect of waiving, its attorney-client privilege, attorney work product or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafterother applicable privilege with respect thereto, (B4) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are Insurer will not available consent to the Indemnitor entry of any judgment on or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, enter into any settlement with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, Indemnified Claim without the Indemnified Party’s prior written consent of the Indemnitee, (which consent shall will not be unreasonably withheld, conditioned or delayed) unless the judgment or proposed settlement or other equitable relief would adversely impact the Indemnified Party, settle adversely impact the Plan’s tax-qualified status or compromise admit liability on the part of any pending or threatened Third Indemnified Party, (5) the Indemnified Party Claim in respect of which indemnification may be sought hereunder (whether or will not the Indemnitee is an actual or potential party to such Third Party Claim) or consent to the entry of any judgment (A) which does not, to the extent that the Indemnitee or enter into any of its Affiliates may have any liability settlement with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are to be paid in full by Indemnitor, and (iii) the terms of such settlement are not reasonably expected to affect the Taxes of the Companies, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Indemnified Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitorwithout Insurer’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent (which will not to be unreasonably withheld, conditioned or delayed.
) and (c6) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts the Indemnified Party may consent to pursue the entry of any claims for insurance judgment or enter into any settlement with respect to any claims or Losses for which it is seeking indemnification hereunderthe Uncovered Claim without Insurer’s prior consent.
iv. If Insurer has not assumed the defense of an Indemnified Claim after receiving notice of the Indemnified Claim, (d1) Except the Indemnified Party may defend against the Indemnified Claim in any manner it reasonably determines to be appropriate, (2) Insurer will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Indemnified claim (including reasonable attorneys’ fees and expenses allocable to such Indemnified Claim) to the extent such costs are liabilities for which the Indemnified Party is entitled to indemnification under this paragraph 9 and (3) Insurer will remain responsible for any costs the Indemnified Party may incur resulting from the Indemnified Claim to the extent such costs are liabilities for which the Indemnified Party is entitled to indemnification under this paragraph 9. If the Indemnified Party has not assumed the defense of a conflict between this Section 9.6 and Section 6.8(e)an Uncovered Claim as contemplated by paragraph 9.a.iii, Insurer is not responsible in which case Section 6.8(e) shall controlany way for any liabilities or orders resulting from not responding to or defending such Uncovered Claim, the procedures set forth provided that Insurer’s responsibility for Indemnified Claims will not be altered in any way.
v. Notwithstanding anything in this Section 9.6 shall apply Commitment Agreement to the contrary, this paragraph 9 will not be deemed to supersede or extinguish any Third Party Claim that is described in Section 6.8(e) (relating rights of Independent Fiduciary or Company pursuant to Tax Contests and certain other Tax matters)the IF Engagement Letter.
Appears in 1 contract
Samples: Commitment Agreement (Hartford Financial Services Group Inc/De)
Procedures for Indemnification Claims. Except as provided in Section 9(e), if a claim for indemnification (aa “Claim”) Any party seeking indemnity hereunder is to be made by a Buyer Indemnified Party (the “IndemniteeClaimant”), the Claimant shall give written notice (a “Claim Notice”) shall promptly notify in writing to the party or parties who may be providing indemnity hereunder (Stockholder Representative as soon as practicable after the “Indemnitors”) with respect to any matter of which the Indemnitee Claimant becomes aware which of the facts, condition or event that may give rise to a claim Losses for indemnification against the Indemnitors under this Article IX, stating the nature, basis and (to the extent known) amount thereof; provided, that no delay on the part of the Indemnitee in notifying the Indemnitor shall relieve the Indemnitor from any obligation hereunder except to the extent the Indemnitor is prejudiced thereby. Copies of any written communications then-received in connection with such claim shall be forwarded to Indemnitor together with such notice of the matter.
(b) In case of any Legal Proceeding by a third party or by any Governmental Authority, or any Legal Proceeding involving claims brought by such a third party or a Governmental Authority with respect to which Indemnitor may have Liability under the indemnification provisions of this Article IX, the Indemnitor shall have the right to participate in, or by giving written notice to the Indemnitee, to assume the defense of any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against the Indemnitor at the Indemnitor’s expense and by the Indemnitor’s own counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate in good faith in such defense; provided, that, in order to assume the defense of any Third Party Claim, the following conditions must be satisfied: (i) the Indemnitor shall have confirmed in writing, within thirty (30) calendar days after receiving notice of such Third Party Claim, that it is assuming such defense and the Indemnitor’s irrevocable and unconditional obligation to fully indemnify (subject to the limitations on indemnification contained in this Article IX) the Indemnitee against any Losses that may result from the Third Party Claim, (ii) the Third Party Claim involves solely monetary damages, (iii) the Losses that may result from the Third Party Claim, along with any and all other pending claims against the Indemnitee, are not reasonably expected to exceed the scope of the indemnification obligation of Indemnitor (including damages sought in excess of the then-remaining Indemnity Escrow Funds), and (iv) the insurer under the R&W Insurance Policy shall not have assumed the defense of such Third Party Claim in accordance with the terms of the Representation and Warranty Insurance Policy. If, upon providing such acknowledgment, the Indemnitor elects to assume the defense of such Third Party Claim as aforesaid, then:
(i) the Indemnitor shall not be required to pay or otherwise indemnify the Indemnitee against any attorneys’ fees incurred by the Indemnitee in connection with such Third Party Claim following the Indemnitor’s acknowledgment and election to assume the defense of such Third Party Claim, unless (A) the Indemnitor fails to defend diligently the action or proceeding within ten (10) calendar days after receiving notice of such failure from the Indemnitee or at any time thereafter, (B) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnitee or other Indemnitees that are not available to the Indemnitor or (C) the Indemnitee reasonably shall have concluded (upon advice of its counsel) that, with respect to such Third Party Claim, the Indemnitee and the Indemnitor may have different, conflicting, or adverse legal positions or interests;
(ii) the Indemnitee shall make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such Third Party Claim;
(iii) the Indemnitee shall otherwise cooperate as reasonably requested by the Indemnitor in the defense of such Third Party Claim;
(iv) the Indemnitee shall not admit any liability with respect to such Third Party Claim;
(v) the Indemnitor shall not, without the written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, settle or compromise any pending or threatened Third Party Claim in respect of which indemnification may be sought hereunder under this Section 9, provided, however, that if the Buyer makes a Claim, the Buyer shall make no further payment on the First Promissory Note or any Earn Out Payment until such Claim is resolved. Following receipt of the Claim Notice from the Claimant, the Stockholder Representative shall have a reasonable period of time under the circumstances, not to exceed thirty (whether or not 30) days in any event, to make a reasonable investigation of the Indemnitee is an actual or potential party Claim; provided, however, that if the Claimant reasonably determines that it will be prejudiced by affording the Stockholder Representative such period of time for investigation, the Stockholder Representative and the Claimant shall agree promptly on the appropriate period of time for such investigation. For the purposes of such investigation, the Claimant agrees to such Third Party Claim) or consent make reasonably available to the entry of any judgment (AStockholder Representative and/or its authorized representative(s) which does not, the information relied upon by the Claimant to substantiate the Claim. If the Claimant and the Stockholder Representative agree at or prior to the extent that expiration of said investigation period to the Indemnitee or any validity and amount of its Affiliates may have any liability with respect to such Claim, include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim, (B) which includes any statement as to or an admission of fact, culpability or a failure to act, by or on behalf of the Indemnitee or any of its Affiliates or (C) which in any manner involves any injunctive relief against the Indemnitee or any of its Affiliates or materially and adversely affects the Indemnitee or any of its Affiliates; provided, that such consent Stockholder Representative shall not be required where (i) the terms of such settlement do not include or require any finding or admission of any violation of Law or any violation of the rights of any Person, (ii) pursuant to the terms of such settlement the sole relief to be provided is monetary damages that are cause to be paid in promptly to the Claimant the full by Indemnitor, and (iii) the terms amount of such settlement are Claim, subject to the Indemnification Basket and the Indemnification Cap. If the Claimant and the Stockholder Representative do not reasonably expected to affect the Taxes of the Companiesagree within said period, the Buyer or their Affiliates after the Closing Date; and
(vi) if the Indemnitor elects not to assume the defense of, fails to confirm its obligation to indemnify for any such Third Party Claim or otherwise fails to defend the claim consistent with the terms of this Section 9.6, then (A) Indemnitor shall nevertheless be entitled to participate in such defense with Indemnitor’s own counsel and at its own expense, and (B) the Indemnitee shall proceed diligently to defend such Third Party Claim with counsel that shall be reasonably satisfactory to Indemnitor and shall act reasonably and in accordance with its good faith business judgment; provided, that the Indemnitee shall not settle, adjust or compromise such Third Party Claim, or admit any liability with respect to such Third Party Claim, without the prior written consent of the Indemnitor, such consent not to be unreasonably withheld, conditioned or delayedClaimant may seek appropriate legal remedy.
(c) The Indemnitee shall, and shall cause its Affiliates to, use commercially reasonable efforts to pursue any claims for insurance with respect to any claims or Losses for which it is seeking indemnification hereunder.
(d) Except to the extent of a conflict between this Section 9.6 and Section 6.8(e), in which case Section 6.8(e) shall control, the procedures set forth in this Section 9.6 shall apply to any Third Party Claim that is described in Section 6.8(e) (relating to Tax Contests and certain other Tax matters).
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Access Integrated Technologies Inc)
