Procedures for Indemnification; Third Party Claims. If a claim or demand is made against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that section.
Appears in 4 contracts
Samples: Transaction Agreement (Covance Inc), Transaction Agreement (Covance Inc), Transaction Agreement (Corning Clinical Laboratories Inc)
Procedures for Indemnification; Third Party Claims. (1) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the SG Holdings Group or the SG DevCo Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 6.2 or Section 6.3, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "“Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the give such Indemnifying Party in writing, and written notice thereof within thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail, including, if known, the amount of the Third Party Claim promptly (and in any event within 15 business days) after receipt loss or Liability claimed or asserted by such Indemnitee third party for which indemnification may be available. Notwithstanding the foregoing, the failure of written notice of the Third any Indemnified Party Claim; provided, however, that failure or other Person to give such notification notice as provided in this Section 6.4 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VI, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the .
(2) An Indemnifying Party shall be entitled (but shall not be required) to participate in assume and control the defense thereof and, in of such Third Party Claim at its expense and through counsel of its choice who is reasonably acceptable to the case Indemnified Party if it gives notice of an Indemnifying Party's obligation its intention to indemnify do so to the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if Indemnified Party within thirty (30) days of the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify receipt of such notice from the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Indemnified Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim to the extent such Third Party Claim (x) is a Proceeding by a Governmental Authority, (y) involves an allegation of a criminal violation or (z) seeks injunctive relief against the Indemnified Party. In the event of a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to the Third Party Claim, the Indemnified Party shall be liable entitled to retain, at the Indemnifying Party’s expense, separate counsel reasonably acceptable to the Indemnifying Party as required by the applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(3) If, in such notice, an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnified Party of its election as provided in Section 6.4(2), such Indemnified Party may defend such Third Party Claim at the fees cost and expenses expense of counsel the Indemnifying Party; provided, however, that the Indemnifying Party may at any time thereafter assume the defense of such Third Party Claim upon notice to the Indemnified Party (but the reasonable cost and expense incurred by the Indemnitee Indemnified Party in defending such Third Party Claim) if Claim until such date as the Indemnifying Party shall assume the defense of such Third Party Claim seeks an order, injunction shall be paid by the Indemnifying Party).
(4) The Indemnified Party may not settle or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from compromise any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can without the consent of the Indemnifying Party (such consent not to be so separated from that for money damagesunreasonably withheld, conditioned or delayed).
(5) The Indemnifying Party shall have the right to compromise or settle a Third Party Claim the defense of which it shall have assumed pursuant to Section 6.4(2) or Section 6.4(3) and any such settlement or compromise made or caused to be made of a Third Party Claim in accordance with this Article VI shall be binding on the Indemnified Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise. Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party (not to be entitled unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party in connection with such matter, (B) consists solely of monetary consideration borne by a Person other than the Indemnified Party, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(6) In the event of Proceedings in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the Parties shall endeavor to assume substitute the Indemnifying Party for the named defendant, if at all practicable and advisable under the circumstances. If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Proceedings as set forth in this Article VI.
(7) With respect to any Third Party Claim that implicates both the SG DevCo Group and the SG Holdings Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the SG Holdings Business or SG DevCo Business, responsibilities for management of defense, and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use reasonable best efforts to cooperate fully and maintain a joint defense (in a manner that will preserve for the relevant members of the SG DevCo Group and SG Holdings Group the attorney-client privilege, joint defense or other privilege with respect thereto). The Party that is not responsible for managing the defense of the portion such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to money damages. The provisions contained in Section 3.01(d) shall control assist in the situations described particularly in that sectiondefense of such claims (at such Party’s own expense).
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Safe & Green Development Corp), Separation and Distribution Agreement (Safe & Green Holdings Corp.), Separation and Distribution Agreement (Safe & Green Development Corp)
Procedures for Indemnification; Third Party Claims. (a) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the Remainco Group or the FOX Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 4.02 or Section 4.03, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "“Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business twenty (20) days) after receipt by give such Indemnitee of Indemnifying Party written notice thereof after such Indemnified Party received notice or otherwise learned of such Third Party Claim for which it seeks indemnification hereunder. Any such notice shall describe the Third Party Claim; providedClaim in reasonable detail, howeverincluding, that if known and quantifiable to the reasonable satisfaction of the Indemnified Party, the amount of the Loss for which indemnification may be available. Notwithstanding the foregoing, the failure of any Indemnified Party or other Person to give such notification notice as provided in this Section 4.05(a) shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article IV, except to the extent the that such Indemnifying Party shall have has been actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the .
(b) An Indemnifying Party shall be entitled (but shall not be required) to participate in assume and control the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant subject to Section 3.01(a4.05(e), Section 3.01(b), Section 3.02 or Section 3.03, settlement of such Third Party Claim at its expense and through counsel of its choice that is reasonably acceptable to the Indemnified Party if it gives notice of its intention to do so to the Indemnified Party within 30 days of the receipt of such notice from the Indemnified Party. In the event of a conflict of interest between the Indemnifying Party so chooses and acknowledges the Indemnified Party, the Indemnified Party shall be entitled to retain, at the Indemnifying Party’s expense, separate counsel as required by the applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in writing its obligation such defense in accordance with this Section 4.05(b) and Section 6.06(c) and make available to indemnify the Indemnitee thereforIndemnifying Party, to assume at the defense thereof with counsel selected Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party; provided. Similarly, however, that such counsel if the Indemnified Party is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume conducting the defense of a against any such Third Party Claim, the Indemnifying Party shall not be liable cooperate with the Indemnified Party in such defense and make available to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counselIndemnified Party, at its own expense, separate from the counsel employed by the Indemnifying Party’s expense, it being understood that all witnesses, pertinent Records, materials and information in the Indemnifying Party shall Party’s possession or under the Indemnifying Party’s control such defenserelating thereto as are reasonably required by the Indemnified Party. The Indemnifying Party shall be liable for consult with and keep the fees and expenses Indemnified Party informed of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume progress of the defense thereof. If or settlement of the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of Claim and the Indemnitees shall cooperate with the Indemnifying Indemnified Party may employ its own counsel at its own expense to assist in the defense or prosecution thereof. If the settlement.
(c) If, in such notice, an Indemnifying Party acknowledges in writing liability elects not to assume responsibility for defending a Third Party Claim, then in no event will the Indemnitee admit any liability with respect toClaim for which indemnification is required under this Agreement, or settlefails to notify an Indemnified Party of its election as provided in Section 4.05(b), compromise or dischargesuch Indemnified Party may defend and, any subject to Section 4.05(d), settle such Third Party Claim without at the cost and expense of the Indemnifying Party's prior written consent, which consent shall .
(d) The Indemnified Party may not be unreasonably withheld settle or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such any Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the (such consent not to be unreasonably withheld, conditioned or delayed).
(e) The Indemnifying Party from its indemnification obligation hereunder with respect shall have the right to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of settle a Third Party Claim that the Indemnifying Party may recommend defense of which by its terms (i) obligates the Indemnifying Party it shall have assumed pursuant to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or dischargeSection 4.05(b). Notwithstanding the foregoingforegoing sentence, the Indemnifying Party shall not be entitled to assume the defense of settle any such Third Party Claim without the prior written consent of an Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party in connection with such matter, (B) provides relief consisting solely of money damages borne by the Indemnifying Party and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(f) In the event of Proceedings in which the Indemnifying Party is not a named defendant, and either the Indemnified Party or Indemnifying Party in its reasonable judgment believes that under the circumstances the Indemnifying Party should be substituted in as the named defendant, either Party can request such substitution and the other Party will consider that request in good faith. If the Parties do not agree on the substitution, the Indemnified Party shall be liable for permitted to seek the fees substitution in that Proceeding, and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled permitted to assume object to such substitution in that Proceeding. This provision shall not be read to mean (and does not mean) that any particular request for substitution should be either granted or denied. If such substitution cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the proceedings as set forth in, and subject to, this Article IV. Nothing herein shall preclude either Party from seeking to dismiss itself from the Proceedings, including without limitation, filing of an appropriate motion with the court and/or seeking the stipulation of the opposing party to the Proceedings.
(g) With respect to any Third Party Claim that implicates both the FOX Group and the Remainco Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the Remainco Business or FOX Business, responsibilities for management of defense and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, FOX and Remainco agree to use commercially reasonable efforts to cooperate fully and enter into a mutually acceptable joint defense or common interest agreement (in a manner that will preserve for the relevant members of the FOX Group and Remainco Group the attorney-client privilege, joint defense or other privilege with respect thereto). The Party that is not responsible for managing the defense of the portion such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may retain counsel at its own expense to money damages. The provisions contained in Section 3.01(d) shall control assist in the situations described particularly defense of such claims.
(h) Notwithstanding the foregoing in this Section 4.05, for any Proceeding set forth on Schedule 4.05(h), (i) the Party set forth therein shall have full power and authority to control the defense of such Proceeding (the “Shared Litigation Controlling Party”), (ii) such Shared Litigation Controlling Party may not settle or compromise such Proceeding without the consent of the other Party (the “Shared Litigation Non-Controlling Party”) (such consent not to be unreasonably withheld, conditioned or delayed) and (iii) such Shared Litigation Controlling Party shall bear all costs and expenses associated with controlling the defense of such Proceeding (including the cost of counsel retained to defend the Proceeding); provided, however, that sectionthe Shared Litigation Controlling Party’s obligation to pay such costs and expenses shall not affect the allocation of any Liability with respect to such Proceeding as otherwise set forth in the schedules to this Agreement. At all times the Shared Litigation Controlling Party shall consult with and keep the Shared Litigation Non-Controlling Party informed of the defense or settlement of the applicable Proceeding and the Shared Litigation Non-Controlling Party may employ its own counsel at its own expense to assist in the defense or settlement. In the event that, after the Distribution, the Parties mutually agree to (and are permitted to) handle any Proceeding set forth on Schedule 4.05(h) separately, where they or any members of their respective Groups are parties, then each Party shall be permitted to control the defense of such Proceeding to the extent to which it or any member of its Group is a party; provided, however, that such handling shall not affect the allocation of any Liability with respect to such Proceedings as otherwise set forth in the schedules to this Agreement.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Twenty-First Century Fox, Inc.), Separation and Distribution Agreement (Fox Corp), Separation and Distribution Agreement (Fox Corp)
Procedures for Indemnification; Third Party Claims. Other than with respect to indemnification for any U.K. Newspaper Matter under Section 4.03(f), which shall be governed solely by Section 4.06:
(a) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the Remainco Group or the New News Corporation Group, as the case may be, of any claim, or of the commencement by any such Person of any Action, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 4.02 or Section 4.03, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "Third “Third-Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the give such Indemnifying Party in writing, and written notice thereof within 20 days after such Indemnified Party received notice or otherwise learned of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in reasonable detail, including, if known, the amount of the Third Loss or Liability for which indemnification may be available. Notwithstanding the foregoing, the failure of any Indemnified Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure or other Person to give such notification notice as provided in this Section 4.05(a) shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article IV, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the .
(b) An Indemnifying Party shall be entitled (but shall not be required) to participate in assume and control the defense thereof and, in of such Third-Party Claim at its expense and through counsel of its choice that is reasonably acceptable to the case Indemnified Party if it gives notice of an Indemnifying its intention to do so to the Indemnified Party within 20 days of the receipt of such notice from the Indemnified Party's obligation to indemnify . In the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if event of a conflict of interest between the Indemnifying Party so chooses and acknowledges the Indemnified Party, the Indemnified Party shall be entitled to retain, at the Indemnifying Party’s expense, separate counsel as required by the applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in writing its obligation such defense and make available to indemnify the Indemnitee thereforIndemnifying Party, to assume at the defense thereof with counsel selected Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party; provided. Similarly, however, that such counsel if the Indemnified Party is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume conducting the defense of a against any such Third Party Claim, the Indemnifying Party shall not be liable cooperate with the Indemnified Party in such defense and make available to the Indemnitee Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(c) If, in such notice, an Indemnifying Party elects not to assume responsibility for legal defending a Third-Party Claim, or other expenses subsequently fails to notify an Indemnified Party of its election as provided in Section 4.05(b), such Indemnified Party may defend such Third-Party Claim at the cost and expense of the Indemnifying Party; provided, that the Indemnifying Party may at any time thereafter assume the defense of such Third-Party Claim upon notice to the Indemnified Party (but the cost and expense incurred by the Indemnitee Indemnified Party in connection with the defense thereof. If defending such Third-Party Claim until such date as the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in assume the defense thereof and to employ counsel, at its own expense, separate from the counsel employed of such Third-Party Claim shall be paid by the Indemnifying Party, it being understood that the Indemnifying ).
(d) The Indemnified Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for may not settle or compromise any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Third-Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the (such consent not to be unreasonably withheld or delayed).
(e) The Indemnifying Party from its indemnification obligation hereunder with respect shall have the right to such Third compromise or settle a Third-Party Claim the defense of which it shall have assumed pursuant to Section 4.05(b) or Section 4.05(c) and any such settlement, settlement or compromise made or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree caused to any settlement, compromise or discharge be made of a Third Third-Party Claim that in accordance with this Article IV shall be binding on the Indemnifying Party may recommend which Indemnified Party, in the same manner as if a final judgment or decree had been entered by its terms (i) obligates a court of competent jurisdiction in the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise settlement or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or dischargecompromise. Notwithstanding the foregoingforegoing sentence, the Indemnifying Party shall not be entitled to assume the defense of settle any such Third Party Claim without the written consent of the Indemnified Party (not to be unreasonably withheld) unless such settlement (A) completely and unconditionally releases the Indemnified Party in connection with such matter, (B) provides relief consisting solely of money damages borne by the Indemnifying Party and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(f) In the event of an Action in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall be liable so request, the Parties shall endeavor to substitute the Indemnifying Party for the fees named defendant, if at all practicable and expenses of counsel incurred by advisable under the Indemnitee in defending circumstances. If such Third Party Claim) if the Third Party Claim seeks an order, injunction substitution or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, addition cannot be separated from achieved for any related claim for money damages. If such equitable relief reason or other relief portion of is not requested, the Third Party Claim can be so separated from that for money damages, named defendant shall allow the Indemnifying Party shall be entitled to assume manage the defense of the portion relating to money damages. The provisions contained Action as set forth in Section 3.01(d) shall control in the situations described particularly in that sectionthis Article IV.
Appears in 3 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Twenty-First Century Fox, Inc.), Separation and Distribution Agreement (New Newscorp LLC)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party under Section 12.1 or 12.2 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under such Section, give notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except, and in reasonable detailonly to the extent that, the indemnifying party demonstrates that the defense of such action is materially prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnifying party’s failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any Proceeding referred to in Section 12.5(a) is brought against an indemnified party and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will be entitled to participate in the defense thereof such Proceeding and, to the extent that it wishes (unless the indemnifying party is also a party to such Proceeding or the indemnified party determines in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(agood faith that joint representation would be inappropriate), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such Proceeding with counsel selected by reasonably satisfactory to the Indemnifying Partyindemnified party; provided, however, provided that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect indemnifying party provides written notice of its election to assume the defense of a Third Party Claimsuch Proceeding to the indemnified party within ten (10) days of receipt by the indemnifying party of the notice of claim by the indemnified party, and, after delivery of such written notice from the indemnifying party to the indemnified party, the Indemnifying Party shall not indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnitee indemnified party under this Article XII for legal any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof of a Proceeding:
(i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to employ counsel, at its own expense, separate from the counsel employed indemnification;
(ii) no compromise or settlement of such claims may be effected by the Indemnifying Partyindemnifying party without the indemnified party’s consent unless: (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, it being understood and (B) the sole relief provided is monetary damages that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed are paid in full by the Indemnitee for indemnifying party; and
(iii) the indemnified party will have no liability with respect to any period during which compromise or settlement of such claims effected without its consent, other than reasonable, documented costs of investigation.
(c) Notwithstanding the Indemnifying Party has failed foregoing, if (i) the indemnifying party does not, within ten (10) days after the indemnified party’s notice is given pursuant to assume this Section 12.5, give written notice to the defense thereof. If the Indemnifying Party so elects indemnified party of its election to assume the defense of any Third Party Claimsuch Proceeding as permitted under Section 12.5(b), all or (ii) the indemnified party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other than as a result of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability monetary damages for a Third Party Claimwhich it would be entitled to indemnification under this Agreement, then in no event will either case the Indemnitee admit any liability with respect toindemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settlesettle such Proceeding, but, in such case the indemnifying party will not be bound by any compromise or discharge, any Third Party Claim settlement effected without the Indemnifying Party's prior written consent, its consent (which consent shall will not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, withheld) unless such compromise or discharge such Third Party Claim without the consent settlement: (A) results in no finding or admission of any violation of Legal Requirements or any violation of the Indemnifying Party if rights of any Person and (B) does not obligate the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party indemnifying party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money monetary damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that section.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Titan Global Holdings, Inc.), Stock Purchase Agreement (Titan Global Holdings, Inc.), Stock Purchase Agreement (NewGen Technologies, Inc)
Procedures for Indemnification; Third Party Claims. (1) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the AFC Gamma Group or the SUNS Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 6.2 or Section 6.3, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "“Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the give such Indemnifying Party in writing, and written notice thereof within thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail, including, if known, the amount of the Third Party Claim promptly (and in any event within 15 business days) after receipt loss or Liability claimed or asserted by such Indemnitee third party for which indemnification may be available. Notwithstanding the foregoing, the failure of written notice of the Third any Indemnified Party Claim; provided, however, that failure or other Person to give such notification notice as provided in this Section 6.4 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VI, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the .
(2) An Indemnifying Party shall be entitled (but shall not be required) to participate in assume and control the defense thereof and, in of such Third Party Claim at its expense and through counsel of its choice who is reasonably acceptable to the case Indemnified Party if it gives notice of an Indemnifying Party's obligation its intention to indemnify do so to the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if Indemnified Party within thirty (30) days of the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify receipt of such notice from the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Indemnified Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim to the extent such Third Party Claim (x) is a Proceeding by a Governmental Authority, (y) involves an allegation of a criminal violation or (z) seeks injunctive relief against the Indemnified Party. In the event of a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to the Third Party Claim, the Indemnified Party shall be liable entitled to retain, at the Indemnifying Party’s expense, separate counsel reasonably acceptable to the Indemnifying Party as required by the applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(3) If, in such notice, an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnified Party of its election as provided in Section 6.4(2), such Indemnified Party may defend such Third Party Claim at the fees cost and expenses expense of counsel the Indemnifying Party; provided, however, that the Indemnifying Party may at any time thereafter assume the defense of such Third Party Claim upon notice to the Indemnified Party (but the reasonable cost and expense incurred by the Indemnitee Indemnified Party in defending such Third Party Claim) if Claim until such date as the Indemnifying Party shall assume the defense of such Third Party Claim seeks an order, injunction shall be paid by the Indemnifying Party).
(4) The Indemnified Party may not settle or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from compromise any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can without the consent of the Indemnifying Party (such consent not to be so separated from that for money damagesunreasonably withheld, conditioned or delayed).
(5) The Indemnifying Party shall have the right to compromise or settle a Third Party Claim the defense of which it shall have assumed pursuant to Section 6.4(2) or Section 6.4(3) and any such settlement or compromise made or caused to be made of a Third Party Claim in accordance with this Article VI shall be binding on the Indemnified Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise. Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party (not to be entitled unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party in connection with such matter, (B) consists solely of monetary consideration borne by a Person other than the Indemnified Party, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(6) In the event of Proceedings in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the Parties shall endeavor to assume substitute the Indemnifying Party for the named defendant, if at all practicable and advisable under the circumstances. If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Proceedings as set forth in this Article VI.
(7) With respect to any Third Party Claim that implicates both the SUNS Group and the AFC Gamma Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the AFC Gamma Business or SUNS Business, responsibilities for management of defense, and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use reasonable best efforts to cooperate fully and maintain a joint defense (in a manner that will preserve for the relevant members of the SUNS Group and AFC Gamma Group the attorney-client privilege, joint defense or other privilege with respect thereto). The Party that is not responsible for managing the defense of the portion such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to money damages. The provisions contained in Section 3.01(d) shall control assist in the situations described particularly in that sectiondefense of such claims (at such Party’s own expense).
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Sunrise Realty Trust, Inc.), Separation and Distribution Agreement (Sunrise Realty Trust, Inc.)
Procedures for Indemnification; Third Party Claims. (a) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the Trinity Group or the Arcosa Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 6.2 or Section 6.3, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement), such Indemnitee Indemnified Party shall notify the give such Indemnifying Party in writing, and written notice thereof within thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail, including, if known, the amount of the Third Party Claim promptly (and in any event within 15 business days) after receipt loss or Liability claimed or asserted by such Indemnitee third party for which indemnification may be available. Notwithstanding the foregoing, the failure of written notice of the Third any Indemnified Party Claim; provided, however, that failure or other Person to give such notification notice as provided in this Section 6.4 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VI, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the .
(b) An Indemnifying Party shall be entitled (but shall not be required) to participate in assume and control the defense thereof and, in of such Third Party Claim at its expense and through counsel of its choice who is reasonably acceptable to the case Indemnified Party if it gives notice of an Indemnifying Party's obligation its intention to indemnify do so to the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if Indemnified Party within thirty (30) days of the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify receipt of such notice from the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Indemnified Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim to the extent such Third Party Claim (x) is a Proceeding by a Governmental Authority, (y) involves an allegation of a criminal violation or (z) seeks injunctive relief against the Indemnified Party. In the event of a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to the Third Party Claim, the Indemnified Party shall be liable entitled to retain, at the Indemnifying Party's expense, separate counsel reasonably acceptable to the Indemnifying Party as required by the applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent Records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party's expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as are reasonably required by the Indemnified Party.
(c) If, in such notice, an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnified Party of its election as provided in Section 6.4(b), such Indemnified Party may defend such Third Party Claim at the fees cost and expenses expense of counsel the Indemnifying Party; provided, however, that the Indemnifying Party may at any time thereafter assume the defense of such Third Party Claim upon notice to the Indemnified Party (but the reasonable cost and expense incurred by the Indemnitee Indemnified Party in defending such Third Party Claim) if Claim until such date as the Indemnifying Party shall assume the defense of such Third Party Claim seeks an order, injunction shall be paid by the Indemnifying Party).
(d) The Indemnified Party may not settle or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from compromise any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can without the consent of the Indemnifying Party (such consent not to be so separated from that for money damagesunreasonably withheld, conditioned or delayed).
(e) The Indemnifying Party shall have the right to compromise or settle a Third Party Claim the defense of which it shall have assumed pursuant to Section 6.4(b) or Section 6.4(c) and any such settlement or compromise made or caused to be made of a Third Party Claim in accordance with this Article VI shall be binding on the Indemnified Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise. Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party (not to be entitled unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party in connection with such matter, (B) consists solely of monetary consideration borne by a Person other than the Indemnified Party, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(f) In the event of Proceedings in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the Parties shall endeavor to assume substitute the Indemnifying Party for the named defendant, if at all practicable and advisable under the circumstances. If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Proceedings as set forth in this Article VI.
(g) With respect to any Third Party Claim that implicates both the Arcosa Group and the Trinity Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the Trinity Business or Arcosa Business, responsibilities for management of defense, and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use reasonable best efforts to cooperate fully and maintain a joint defense (in a manner that will preserve for the relevant members of the Arcosa Group and Trinity Group the attorney-client privilege, joint defense or other privilege with respect thereto). The Party that is not responsible for managing the defense of the portion such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to money damages. The provisions contained in Section 3.01(d) shall control assist in the situations described particularly in that sectiondefense of such claims (at such Party's own expense).
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Trinity Industries Inc), Separation and Distribution Agreement (Arcosa, Inc.)
Procedures for Indemnification; Third Party Claims. If a claim or demand is made against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that section.
Appears in 2 contracts
Samples: Transaction Agreement (Corning Clinical Laboratories Inc), Transaction Agreement (Corning Pharmaceutical Services Inc)
Procedures for Indemnification; Third Party Claims. (a) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the NCR Group or the ATMCo Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 6.2 or Section 6.3, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "Third “Third-Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the promptly give such Indemnifying Party written notice thereof, but no later than thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in writingreasonable detail and shall include: (i) the basis for, and nature of, such Third-Party Claim, including the facts constituting the basis for such Third-Party Claim; (ii) the estimated amount of losses (to the extent so estimable) that have been or may be sustained by the indemnitee in reasonable detail, connection with such Third-Party Claim; and (iii) copies of all notices and documents (including court papers) received by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of indemnitee relating to the Third Third-Party Claim; provided, however, that any such notice need only specify such information to the knowledge of the indemnitee as of the date of such notice and shall not limit or prejudice any of the rights or remedies of any indemnitee on the basis of any limitations on the information included in such notice, including any such limitations made in good faith to preserve the attorney-client privilege, work product doctrine or any other similar privilege or doctrine. Notwithstanding the foregoing, the failure of any Indemnified Party or other Person to give such notification notice as provided in this Section 6.4 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VI, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If .
(b) Promptly after tender for indemnification of a Third Third-Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a6.4(a), Section 3.01(b), Section 3.02 but in no event more than fifteen (15) days or Section 3.03, if such shorter time that the Indemnifying Indemnified Party so chooses and acknowledges determines in writing its obligation to indemnify good faith that the Indemnitee therefor, proper defense of the Third-Party Claim requires that the election to assume the defense thereof with of such claim be made in fewer than fifteen (15) days, an Indemnifying Party shall elect and notify the Indemnified Party whether it intends to defend such Third-Party Claim at its expense and through counsel selected by the Indemnifying Partyof its choice; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim to the extent such Third-Party Claim (x) is a Proceeding by a Governmental Authority, or (y) involves an allegation of a criminal violation. In the event that the Indemnifying Party elects to defend the Third-Party Claim, the Indemnified Party shall grant the Indemnifying Party sole control of the defense, including the selection of counsel, and settlement of the Third-Party Claim, subject to the limitations of Section 6.4(c). In the event the Indemnifying Party is controlling the defense of a Third-Party Claim and there is a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such Third-Party Claim, the Indemnified Party shall be liable for entitled to retain, at its own expense, separate counsel reasonably acceptable to the fees and expenses of counsel incurred Indemnifying Party as required by the Indemnitee applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects (and is permitted) to undertake any such defense, it shall do so at its own expense and the Indemnified Party shall cooperate with the Indemnifying Party in defending such Third defense and make available to the Indemnifying Party all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third-Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(c) If an Indemnifying Party elects, following delivery of a notice of a Third-Party Claim, not to assume responsibility for defending a Third-Party Claim, or fails to defend a properly noticed Third-Party Claim as provided in Section 6.4(a), such Indemnified Party may defend such Third-Party Claim at the cost and expense of the Indemnifying Party. If the Indemnifying Party assumes the responsibility for defending a Third-Party Claim and the nature of such Third-Party Claim changes such that the Indemnifying Party would no longer be entitled to assume the defense of such Third-Party Claim pursuant to Section 6.4(b), the portion Indemnified Party may, at its election, assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection with such defense.
(d) The Indemnified Party may not settle or compromise any Third-Party Claim without the consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
(e) The Indemnifying Party shall have the right to compromise or settle a Third-Party Claim the defense of which it shall have assumed pursuant to Section 6.4(b) and any such settlement or compromise made or caused to be made of a Third-Party Claim in accordance with this Article VI shall be binding on the Indemnified Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise. Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third-Party Claim without the written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party from the Third-Party Claim in connection with such matter, (B) consists solely of monetary consideration the Indemnifying Party has agreed to pay in full, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(f) Notwithstanding the foregoing in this Section 6.4, with respect to any Third-Party Claim that implicates both the ATMCo Group and the NCR Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the NCR Business or ATMCo Business (a “Mixed Claim”), the Parties agree that NCR shall control the defense of any Mixed Claim and to use reasonable best efforts to cooperate fully and, and where counsel so advises, maintain a joint defense (in a manner that will preserve for the relevant members of the ATMCo Group and NCR Group the attorney-client privilege, joint defense or other privilege with respect thereto). ATMCo shall, upon its reasonable request, be consulted with respect to significant matters relating to money damagesany Mixed Claim and may, if necessary or helpful, retain counsel to assist in the defense of such claims (at its own expense). The provisions contained NCR may settle any Mixed Claim without the consent of ATMCo (and subjecting ATMCo to Liability to any portion thereof that is an ATMCo Liability), where (x) such settlement provides only for monetary and no equitable or injunctive relief (at least with respect to ATMCo) and (y) NCR’s out-of-pocket payments for such monetary relief would be greater than ATMCo’s. Other than as set forth in the preceding sentence, NCR shall not settle any Mixed Claim without the prior written consent of ATMCo (not to be unreasonably withheld, conditioned or delayed).
(g) For the avoidance of doubt, any notice or claim delivered in accordance with this Section 6.8 shall constitute a Dispute Notice under Article VIII and should any Party dispute its obligation to provide indemnification as set forth therein it shall be entitled to assert those rights available to it by delivering a Notice of Disagreement pursuant to, and in accordance with, Article VIII.
(h) Notwithstanding the foregoing, those matters addressed in Section 3.01(d) 5.4 shall control in the situations described particularly in that sectionbe managed exclusively as set forth therein.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (NCR Atleos, LLC), Separation and Distribution Agreement (NCR ATMCo, LLC)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under such Section, give notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnifying party's failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any Proceeding referred to in this Section 6.4 is brought against an indemnified party and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will be entitled to participate in such Proceeding and, to the extent that it wishes (unless the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume and control the defense thereof of such Proceeding with counsel reasonably satisfactory to the indemnified party and, in after notice from the case indemnifying party to the indemnified party of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, election to assume the defense thereof with counsel selected by (and settlement, upon obtaining the Indemnifying Party; provided, however, that prior written consent of the indemnified party) of such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party ClaimProceeding, the Indemnifying Party shall not indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnitee indemnified party under this Article VI for legal any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counselof a Proceeding, at its own expense, separate from the counsel employed (i) no compromise or settlement of such claims may be effected by the Indemnifying Partyindemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, it being understood and (B) the sole relief provided is monetary damages that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed are paid in full by the Indemnitee for indemnifying party; (ii) the indemnified party will have no liability with respect to any period during which compromise or settlement of such claims effected without its consent; and (iii) the Indemnifying Party has failed indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within fifteen (15) days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense thereof. If the Indemnifying Party so elects to assume and control the defense and settlement of such Proceeding, the indemnifying party will be bound by any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party determination made in the defense such Proceeding to which indemnification is applicable or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without settlement effected by the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms indemnified party.
(ic) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee if an indemnified party determines in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction good faith that there is a reasonable probability that a Proceeding may adversely affect it or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that section.its
Appears in 1 contract
Samples: Stock Purchase Agreement (Medicis Pharmaceutical Corp)
Procedures for Indemnification; Third Party Claims. If Subject to the limitations set forth in Article 1, in the event any Indemnitee becomes aware of a third party claim which the Indemnitee reasonably believes may result in a claim or demand is made against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to for indemnification pursuant to this AgreementArticle 1, such then the Indemnitee Representative shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business daysfive (5) days after the service of any summons or other document) after receipt by such the Indemnitee acquired knowledge of any third party Proceeding, give written notice thereof to the Indemnitors; provided that the failure of the Third Party Claim; provided, however, that failure Indemnitee Representative to give such notification promptly notify the Indemnitors shall not affect prejudice the indemnification provided hereunder right of the Indemnitee to make or recover for such claim except to the extent the Indemnifying Party shall have been actually prejudiced as a result of that (x) such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed delay has caused material prejudice to give such notice). If a Third Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimsuch claim, the Indemnifying Party shall or (y) such notice is not be liable delivered to the Indemnitee for legal or other expenses subsequently incurred by Indemnitors prior to the Indemnitee in connection with expiration of the defense thereofIndemnification Period. If the Indemnifying Party assumes such defense, the Indemnitee The Indemnitors shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party ClaimProceeding with one (1) law firm reasonably acceptable to the Indemnitee Representative upon delivery of notice to that effect to the Indemnitee Representative. If the Indemnitors, all of after written notice from the Indemnitee Representative, fail to take timely action to defend the action resulting from the Proceeding or otherwise respond to the Proceeding, or if the Indemnitors’ counsel has reasonably determined that there may be a conflict between the Indemnitees shall cooperate with and the Indemnifying Party Indemnitors in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claimof such Proceeding, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee Representative shall have the right to settledefend the action resulting from the Proceeding by counsel of its own choosing, but at the cost and expense of the Indemnitors. The Indemnitee Representative shall not have the right to settle or compromise any Proceeding, and recover from the Indemnitors any amount paid in settlement or discharge such Third Party Claim compromise thereof, without the prior written consent of the Indemnitors. The Indemnitors shall have the right to settle or compromise any Proceeding against the Indemnitees without the consent of the Indemnifying Party if Indemnitee Representative so long as the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, settlement or compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable provide for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion unconditional release of the Third Party Claim can be so separated from that for money damages, Indemnitees and require the Indemnifying Party shall be entitled to assume the defense payment of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionmonetary damages only.
Appears in 1 contract
Samples: Representation and Warranty Indemnification Agreement (MedAmerica Properties Inc.)
Procedures for Indemnification; Third Party Claims. (a) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the Trinity Group or the Arcosa Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 6.2 or Section 6.3, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "“Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the give such Indemnifying Party in writing, and written notice thereof within thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail, including, if known, the amount of the Third Party Claim promptly (and in any event within 15 business days) after receipt loss or Liability claimed or asserted by such Indemnitee third party for which indemnification may be available. Notwithstanding the foregoing, the failure of written notice of the Third any Indemnified Party Claim; provided, however, that failure or other Person to give such notification notice as provided in this Section 6.4 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VI, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the .
(b) An Indemnifying Party shall be entitled (but shall not be required) to participate in assume and control the defense thereof and, in of such Third Party Claim at its expense and through counsel of its choice who is reasonably acceptable to the case Indemnified Party if it gives notice of an Indemnifying Party's obligation its intention to indemnify do so to the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if Indemnified Party within thirty (30) days of the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify receipt of such notice from the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Indemnified Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim to the extent such Third Party Claim (x) is a Proceeding by a Governmental Authority, (y) involves an allegation of a criminal violation or (z) seeks injunctive relief against the Indemnified Party. In the event of a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to the Third Party Claim, the Indemnified Party shall be liable entitled to retain, at the Indemnifying Party’s expense, separate counsel reasonably acceptable to the Indemnifying Party as required by the applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(c) If, in such notice, an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnified Party of its election as provided in Section 6.4(b), such Indemnified Party may defend such Third Party Claim at the fees cost and expenses expense of counsel the Indemnifying Party; provided, however, that the Indemnifying Party may at any time thereafter assume the defense of such Third Party Claim upon notice to the Indemnified Party (but the reasonable cost and expense incurred by the Indemnitee Indemnified Party in defending such Third Party Claim) if Claim until such date as the Indemnifying Party shall assume the defense of such Third Party Claim seeks an order, injunction shall be paid by the Indemnifying Party).
(d) The Indemnified Party may not settle or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from compromise any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can without the consent of the Indemnifying Party (such consent not to be so separated from that for money damagesunreasonably withheld, conditioned or delayed).
(e) The Indemnifying Party shall have the right to compromise or settle a Third Party Claim the defense of which it shall have assumed pursuant to Section 6.4(b) or Section 6.4(c) and any such settlement or compromise made or caused to be made of a Third Party Claim in accordance with this Article VI shall be binding on the Indemnified Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise. Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party (not to be entitled unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party in connection with such matter, (B) consists solely of monetary consideration borne by a Person other than the Indemnified Party, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(f) In the event of Proceedings in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the Parties shall endeavor to assume substitute the Indemnifying Party for the named defendant, if at all practicable and advisable under the circumstances. If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Proceedings as set forth in this Article VI.
(g) With respect to any Third Party Claim that implicates both the Arcosa Group and the Trinity Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the Trinity Business or Arcosa Business, responsibilities for management of defense, and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use reasonable best efforts to cooperate fully and maintain a joint defense (in a manner that will preserve for the relevant members of the Arcosa Group and Trinity Group the attorney-client privilege, joint defense or other privilege with respect thereto). The Party that is not responsible for managing the defense of the portion such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to money damages. The provisions contained in Section 3.01(d) shall control assist in the situations described particularly in that sectiondefense of such claims (at such Party’s own expense).
Appears in 1 contract
Samples: Separation and Distribution Agreement (Arcosa, Inc.)
Procedures for Indemnification; Third Party Claims. If The procedures to be followed by the Buyer and the Sellers with respect to indemnification hereunder regarding claims by third persons which could give rise to an indemnification obligation hereunder shall be as follows:
(a) Promptly after receipt by any Buyer's Indemnitee or Sellers' Indemnitee of notice of the commencement of any action or proceeding (including, without limitation, any notice relating to a tax audit) or the assertion of any claim by a third person which the person receiving such notice has reason to believe may result in a claim or demand is made against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification it for indemnity pursuant to this Agreement, the indemnified person shall give a written notice of such action, proceeding or claim to the party against whom indemnification pursuant hereto is sought (the "Indemnifying Party"), setting forth in reasonable detail the nature of such action, proceeding or claim, including copies of any documents and written correspondence from such third person to such Buyer's Indemnitee or Sellers' Indemnitee.
(b) The Indemnifying Party shall notify be entitled, at its own expense, to participate in the defense of such action, proceeding or claim, and, if (i) the action, proceeding or claim involved seeks (and continues to seek) solely monetary damages, environmental remediation or related to any liability for taxes, (ii) the Indemnifying Party confirms, in writing, its obligation hereunder to indemnify and hold harmless the Indemnified Party with respect to such damages in their entirety subject to the limits in SECTION 10.7, and (iii) the Indemnifying Party, in the reasonable detail, judgment of the Third Indemnified Party, shall be able to satisfy any adverse judgment as a result of its indemnification obligation with respect to such action, proceeding or claim, then the Indemnifying Party Claim promptly (shall be entitled to assume and in any event within 15 business days) after receipt control such defense with counsel chosen by such Indemnitee of written notice of the Third Indemnifying Party Claim; providedand approved by the Indemnified Party, however, that failure to give such notification which approval shall not affect be unreasonably withheld or delayed. The Indemnified Party shall be entitled to participate therein after such assumption, the indemnification provided hereunder except costs of such participation following such assumption to the extent be at its own expense. Upon assuming such defense, the Indemnifying Party shall have been actually prejudiced full rights to enter into any monetary compromise or settlement which is dispositive of the matters involved; provided, that such settlement is paid in full by the Indemnifying Party and will not have any direct or indirect continuing material adverse effect upon the Indemnified Party; and, provided further, that in the event of settlement of claims for environmental remediation, the Indemnifying Party may perform such other acts, including the placement of monitors or other remediation equipment upon the Leased Properties, as a result of may be necessary to resolve such failure claim.
(except that c) With respect to any action, proceeding or claim as to which (i) the Indemnifying Party does not have the right to assume the defense or (ii) the Indemnifying Party shall not be liable for any expenses incurred during have exercised its right to assume the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemniteedefense, the Indemnified Party shall assume and control the defense of and contest such action, proceeding or claim with counsel chosen by it and approved by the Indemnifying Party, which approval shall not be unreasonably withheld. The Indemnifying Party shall be entitled to participate in the defense thereof andof such action, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 proceeding or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimclaim, the Indemnifying Party shall not cost of such participation to be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for obligated to pay the reasonable attorneys' fees and expenses of counsel employed by the Indemnitee for any period during which Indemnified Party. The Indemnified Party may not settle such action, proceeding or claim without the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense prior written consent of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that withheld.
(d) Both the Indemnitee Indemnifying Party and the Indemnified Party shall have cooperate fully with one another in connection with the right to settledefense, compromise or discharge such Third Party Claim without the consent settlement of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlementaction, compromise proceeding or discharge if claim, including, without limitation, by making available to the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (other all pertinent information and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with witnesses within its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectioncontrol.
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Procedures for Indemnification; Third Party Claims. (a) If PEDCO receives written notice of the commencement of any Proceeding by a claim or demand is made against an Indemnitee by any person who is not third party including a party to this Agreement Governmental Authority (a "“Third Party Claim"”) as against any of PEDCO or the Company in relation to which such Indemnitee is entitled the transactions contemplated under this Agreement, and PEDCO intends to indemnification seek indemnity pursuant to this AgreementClause 7.3, such Indemnitee PEDCO shall notify the Indemnifying Party as promptly as practicable provide each Warrantor with notice in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice writing of the Third Party Claim; provided, however, that failure to give no delay on the part of PEDCO in notifying such notification shall not affect the indemnification provided Warrantor will relieve such Warrantor from any obligation hereunder except unless (and then solely to the extent the Indemnifying Party shall have been extent) such Warrantor is materially and actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice)thereof. If a Third Party Claim is made against an Indemnitee, the Indemnifying Party Such Warrantor shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with of such Third Party Claim at its own expense. Such defense shall be conducted through counsel selected by the Indemnifying Party; providedsuch Warrantor, however, that such which counsel is not reasonably objected shall be satisfactory to by the IndemniteePEDCO. Should the Indemnifying Party such Warrantor so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall such Warrantor will not be liable to the Indemnitee PEDCO for any legal or other expenses subsequently incurred by the Indemnitee PEDCO in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in Warrantor is conducting the defense thereof and to employ counselof the Third Party Claim, PEDCO shall be entitled, at its own expense, to retain separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume participate in the defense of any such Third Party Claim, . Such Warrantor will keep PEDCO informed of all of the Indemnitees shall cooperate with the Indemnifying Party in the defense material developments relating to or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation arising in connection with such Third Party Claim and Claim.
(iib) releases In the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further event that the Indemnitee may refuse relevant Warrantor(s) fail to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to so assume the defense of any Third Party Claim within thirty (and 30) calendar days after receipt of notice thereof from PEDCO, PEDCO shall be liable for have the fees and expenses right to undertake the defense of counsel incurred by the Indemnitee in defending such Third Party Claim) Claim and, if the such Third Party Claim seeks an orderis one for which PEDCO is entitled to be indemnified under this Clause 7.3, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion defense of the such Third Party Claim can shall be so separated from that at the expense and for money damagesthe account of the Warrantors.
(c) Each Warrantor shall be required to obtain the prior written consent of PEDCO (such consent not to be unreasonably withheld, the Indemnifying delayed or conditioned) before consenting to any judgment, entering into or making any settlement, compromise or discharge of any Third Party Claim or any liability in respect thereof.
(d) Each Warrantor shall not be entitled to control (but shall be entitled to participate at its own expense in) the defense of any Third Party Claim as to which such Warrantor fails to assume the defense within thirty 30 calendar days after receipt of notice thereof from PEDCO; provided, however, that PEDCO shall make no settlement, compromise, discharge, admission, or acknowledgment that would give rise to any liability on the part of any Warrantor without the prior written consent of such Warrantor (such consent not to be unreasonably withheld, delayed or conditioned).
(e) The reimbursement of fees, costs and expenses required by this Clause 7.3 shall be made by periodic payments during the course of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectioninvestigation or defense, as and when bills are received or expenses incurred.
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Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party of notice of the commencement of any proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under this Section 9, give notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnifying party's failure to give such notification shall not affect notice.
(b) If any proceeding in the indemnification provided hereunder except previous paragraph is brought against an indemnified party and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemniteeproceeding, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event indemnifying party will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses such proceeding with counsel of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determinesits choice and, after conferring with notice from the indemnifying party to the indemnified party of its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled intention to assume the defense of such proceeding, the portion relating indemnifying party will not, as long as it diligently conducts such defense, be liable to money damagesthe indemnified party under this Section 9 for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such proceeding. The provisions contained indemnified party may, at its sole expense, participate in Section 3.01(dsuch defense with counsel reasonably acceptable to the indemnifying party. Once the indemnifying party assumes the defense of a proceeding, (i) shall control in it will be conclusively established for purposes of this Agreement that the situations described particularly claims made in that sectionproceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party, and the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any proceeding and the indemnifying party does not, within 30 days after the indemnified party's notice is given, give notice to the indemnified party of its intention to assume the defense of such [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. proceeding, the indemnifying party will be bound by any determination made in such proceeding or any compromise or settlement effected by the indemnified party.
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Procedures for Indemnification; Third Party Claims. (a) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the NCR Group or the ATMCo Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 8.1 or Section 8.2, or any other Section of this Agreement (collectively, a "Third “Third-Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the promptly give such Indemnifying Party written notice thereof but no later than thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in writingreasonable detail and shall include: (i) the basis for, and nature of, such Third-Party Claim, including the facts constituting the basis for such Third-Party Claim; (ii) the estimated amount of losses (to the extent so estimable) that have been or may be sustained by the indemnitee in reasonable detail, connection with such Third-Party Claim; and (iii) copies of all notices and documents (including court papers) received by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of indemnitee relating to the Third Third-Party Claim; provided, however, that any such notice need only specify such information to the knowledge of the indemnitee as of the date of such notice and shall not limit or prejudice any of the rights or remedies of any indemnitee on the basis of any limitations on the information included in such notice, including any such limitations made in good faith to preserve the attorney-client privilege, work product doctrine or any other similar privilege or doctrine. Notwithstanding the foregoing, the failure of any Indemnified Party or other Person to give such notification notice as provided in this Section 8.3 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VIII, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If .
(b) Promptly after tender for indemnification of a Third Third-Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a8.3(a), Section 3.01(b), Section 3.02 but in no event more than fifteen (15) days or Section 3.03, if such shorter time that the Indemnifying Indemnified Party so chooses and acknowledges determines in writing its obligation to indemnify good faith that the Indemnitee therefor, proper defense of the Third-Party Claim requires that the election to assume the defense thereof with of such claim be made in fewer than fifteen (15) days, an Indemnifying Party shall elect and notify the Indemnified Party whether it intends to defend such Third-Party Claim at its expense and through counsel selected by the Indemnifying Partyof its choice; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim to the extent such Third- Party Claim (x) is a Proceeding by a Governmental Authority, or (y) involves an allegation of a criminal violation. In the event that the Indemnifying Party elects to defend the Third-Party Claim, the Indemnified Party shall grant the Indemnifying Party sole control of the defense, including the selection of counsel, and settlement of the Third-Party Claim, subject to the limitations of Section 8.3(c). In the event the Indemnifying Party is controlling the defense of a Third-Party Claim and there is a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such Third-Party Claim, the Indemnified Party shall be liable for entitled to retain, at its own expense, separate counsel reasonably acceptable to the fees and expenses of counsel incurred Indemnifying Party as required by the Indemnitee applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects (and is permitted) to undertake any such defense, it shall do so at its own expense and the Indemnified Party shall cooperate with the Indemnifying Party in defending such Third defense and make available to the Indemnifying Party all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third-Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(c) If an Indemnifying Party elects, following delivery of a notice of a Third-Party Claim, not to assume responsibility for defending a Third-Party Claim, or fails to defend a properly noticed Third-Party Claim as provided in Section 8.3(a), such Indemnified Party may defend such Third-Party Claim at the cost and expense of the Indemnifying Party. If the Indemnifying Party assumes the responsibility for defending a Third-Party Claim and the nature of such Third-Party Claim changes such that the Indemnifying Party would no longer be entitled to assume the defense of such Third-Party Claim pursuant to Section 8.3(b), the portion relating Indemnified Party may, at its election, assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection with such defense.
(d) The Indemnifying Party shall have the right to money damages. The provisions contained compromise or settle a Third-Party Claim the defense of which it shall have assumed pursuant to Section 8.3(b) and any such settlement or compromise made or caused to be made of a Third-Party Claim in Section 3.01(d) accordance with this Article VIII shall control be binding on the Indemnified Party, in the situations described particularly same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in that sectionthe amount of such settlement or compromise. Notwithstanding the foregoing sentence, (i) the Indemnifying Party shall not settle any such Third-Party Claim without the written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party from the Third-Party Claim in connection with such matter, (B) consists solely of monetary consideration the Indemnifying Party has agreed to pay in full, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law, and (ii) if NCR is the Indemnified Party then ATMCo shall reasonably cooperate with NCR in connection with the Third-Party Claim if and to the extent affecting the ownership, enforceability or validity of a Licensed Mark.
Appears in 1 contract
Samples: Trademark License and Use Agreement (NCR Atleos, LLC)
Procedures for Indemnification; Third Party Claims. If 9.6.1 Promptly after receipt by a claim WGSI Indemnified Person or demand is made a Seller Indemnified Person (the “Indemnified Party”) of notice of the commencement of any proceeding against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to it for which such Indemnitee it is entitled to indemnification pursuant to this Agreement, such Indemnitee shall Indemnified Party shall, if a claim is to be made against Purchaser or Sellers, as the case may be (each, an “Indemnifying Party”), give notice to the Indemnifying Party of the commencement of such claim, but the failure to notify the Indemnifying Party in writingwill not relieve the Indemnifying Party of any liability that it may have pursuant to this Agreement to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Indemnifying Party’s failure to give such notice. The Indemnified Party shall provide such evidence and in reasonable detail, documentation of the Third nature and extent of any Damages as may reasonably be requested by the Indemnifying Party.
9.6.2 If any proceeding referred to in Section 9.6.1 is brought against an Indemnified Party Claim promptly and it gives notice to the Indemnifying Party of the commencement of such proceeding, the Indemnifying Party will be entitled to participate in such proceeding and, to the extent that it wishes (unless (i) the Indemnifying Party is also a party to such proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume the defense of such proceeding with counsel of its choosing and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such proceeding, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Article IX for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnified Party in connection with the defense of such proceeding except in the event the Indemnifying Party is also a party to the lawsuit and a defense is available to the Indemnified Party which the Indemnifying Party is unable to raise or if there is otherwise a conflict of interest. If the Indemnifying Party assumes the defense of a proceeding, (i) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of any law or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; provided, that, the foregoing limitation shall not apply if any such monetary damages are properly attributable to the Minimum Damages exception in Section 9.5 and (ii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an Indemnifying Party of the commencement of any proceeding and the Indemnifying Party does not, within twenty (20) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such proceeding, the Indemnifying Party will be bound by any determination made in such proceeding or any compromise or settlement effected by the Indemnified Party.
9.6.3 The Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any event within 15 business days) after receipt such defense, compromise or settlement, including, without limitation, by making available all pertinent information under its control. The Indemnifying Party will not compromise or settle any such Indemnitee of action, suit, proceeding, claim or demand without the prior written notice consent of the Third Party ClaimIndemnified Party; provided, however, that failure to give in the event such notification shall not affect consent is withheld, the indemnification provided hereunder except to the extent liabilities of the Indemnifying Party shall have been actually prejudiced as a result be limited to the total sum representing the amount of the proposed compromise or settlement and the amount of counsel fees accumulated at the time such failure (except that the consent is withheld. The Indemnifying Party shall not be liable for any expenses incurred during settlement by the period in which Indemnified Party of any action, suit, proceeding, claim or demand, unless the Indemnitee failed to give such notice). If a Third Indemnified Party Claim is made against an Indemnitee, obtains the prior written consent of the Indemnifying Party.
9.6.4 Notwithstanding the foregoing, if an Indemnified Party shall determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimindemnification under this Agreement, the Indemnifying Indemnified Party shall not be liable may, by notice to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that assume the exclusive right to defend, compromise, or settle such proceeding, but the Indemnifying Party shall control such defense. The Indemnifying Party shall will not be liable for the fees and expenses bound by any determination of counsel employed by the Indemnitee for a proceeding so defended or any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim settlement effected without the Indemnifying Party's its prior written consent, which consent shall not may be unreasonably withheld for any reason or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionno reason.
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Procedures for Indemnification; Third Party Claims. If (a) Except with respect to a claim Tax Proceeding or demand a Tax Dispute, which is made addressed in Article IX, promptly after receipt by or assertion against an Indemnitee by under Section 12.02 or Section 12.03 of any person who is not a party to this Agreement (a "Third Party Claim that may give rise to a Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such but in any event before expiration of the applicable Survival Date (if any), the Indemnitee shall notify the Indemnifying Party as promptly as practicable send notice in writing, writing and in reasonable detail, detail of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice including the factual basis for the Third Party Claim, and, to the extent known, the amount of the Third Party Claim) to the Indemnitor, which notice shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnitee in connection with such Third Party Claim; provided, however, that the failure to provide such notice to the Indemnitor will not relieve the Indemnitor from any of its obligations under this Article XII, except to the extent that the Indemnitor is prejudiced by the Indemnitee’s failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as notice.
(b) Upon receipt of a result notice of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an referred to in Section 12.05(a) from the Indemnitee, the Indemnifying Party shall Indemnitor will be entitled to participate in such Third Party Claim and shall have the defense thereof and, in right (but not the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, obligation) to assume the defense thereof with counsel selected by and control of such Third Party Claim. If the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to Indemnitor shall assume the defense and control of a such Third Party Claim, the Indemnifying Party shall not Indemnitor will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this Article XII for legal any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case subsequently incurred by the Indemnitee in connection with the defense of such Third Party Claim, except that the Indemnitor shall bear the expense of separate counsel for the Indemnitee if (i) an actual or likely conflict of interest makes representation of the Indemnitee and the Indemnitor by the same counsel inappropriate or (ii) the Indemnitor and the Indemnitee are both named parties to the proceedings (including any impleaded parties) and the Indemnitee shall have reasonably concluded, based on the advice of counsel, that there may be one or more legal defenses available to the Indemnitee that are different from or additional to those available to the Indemnitor or that representation of both parties by the same counsel would be inadvisable due to an actual or potential conflict. The Indemnitor will have fifteen (15) calendar days from receipt of a notice of a Third Party Claim from an Indemnitee pursuant to Section 12.05(a) to assume the defense thereof. If Until such time as the Indemnifying Indemnitor assumes the defense and control of a Third Party assumes such defenseClaim as provided in this Section 12.05(b), and if and to the extent the Indemnitor declines to assume the defense of the Third Party Claim, the Indemnitee shall have the right to participate in defend such Third Party Claim and employ separate counsel to represent such Indemnitee and the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of such separate counsel employed shall be paid by such Indemnitor. Whether the Indemnitor or the Indemnitee for is defending and controlling any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any such Third Party Claim, all it shall select counsel, contractors and consultants of the Indemnitees shall cooperate recognized standing and competence after consultation with the Indemnifying other Party and shall take all steps reasonably necessary in the defense or prosecution thereofsettlement of such Third Party Claim. If the Indemnifying Party acknowledges in writing liability for Indemnitor assumes the defense of a Third Party Claim, then no compromise or settlement of any such claim may be effected by the Indemnitor without the Indemnitee’s consent unless (A) such compromise or settlement contains as a condition thereto a complete release of the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in no event will full by the Indemnitee admit any liability with respect toIndemnitor (subject to Section 12.02(b)(ii) and Section 12.02(b)(iii)). No settlement of, or settle, compromise or dischargeentry of any judgment arising from, any Third Party Claim Claims shall be consented to by any Indemnitee without the Indemnifying Party's prior express written consentconsent of the Indemnitor, which consent shall may not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that section.
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Samples: Asset Purchase Agreement (Western Alliance Bancorporation)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by a claim Buyer Indemnified Person or demand is made a Seller Indemnified Person (the “Indemnified Party”) of notice of the commencement of any proceeding against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to it for which such Indemnitee it is entitled to indemnification pursuant to this Agreement, such Indemnitee shall Indemnified Party shall, if a claim is to be made against Buyer or Seller, as the case may be (each, an “Indemnifying Party”), give notice to the Indemnifying Party of the commencement of such claim, but the failure to notify the Indemnifying Party in writingwill not relieve the Indemnifying Party of any liability that it may have pursuant to this Agreement to any Indemnified Party, and in reasonable detail, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that Indemnifying Party’s failure to give such notification notice. The Indemnified Party shall not affect provide such evidence and documentation of the indemnification provided hereunder except nature and extent of any Damages as may reasonably be requested by the Indemnifying Party.
(b) If any proceeding referred to in Section 9.6(a) is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such proceeding, the Indemnifying Party will be entitled to participate in such proceeding and, to the extent that it wishes (unless (i) the Indemnifying Party shall have been actually prejudiced as is also a result party to such proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), to assume at its sole expense the defense of such failure proceeding with counsel of its choosing and, after notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such proceeding, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Article IX for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnified Party in connection with the defense of such proceeding except in the event the Indemnifying Party is also a party to the lawsuit and a defense is available to the Indemnified Party which the Indemnifying Party is unable to raise or if there is otherwise a conflict of interest. If the Indemnifying Party assumes the defense of a proceeding, (except i) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of any Law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and (ii) the Indemnified Party will have no Liability with respect to any compromise or settlement of such claims effected without its consent; provided, that in the event the consent of the Indemnified Party is required for any compromise or settlement proposed by the Indemnifying Party, the consent of the Indemnified Party shall not be unreasonably withheld, conditioned or delayed. If notice is given to an Indemnifying Party of the commencement of any proceeding and the Indemnifying Party does not, within 20 days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such proceeding, the Indemnifying Party will be bound by any determination made in such proceeding or any compromise or settlement effected by the Indemnified Party, subject to Section 9.6(c).
(c) The Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any such defense, compromise or settlement, including by making available to the extent it may lawfully do so all pertinent information under its control and by making available any personnel, including any personnel of the Company or any of its Subsidiaries, reasonably requested by the Indemnifying Party. If the Indemnified Party assumes the defense of any action, suit, proceeding, claim or demand, the Indemnifying Party shall not be liable for any expenses incurred during settlement by the period in which Indemnified Party of such action, suit, proceeding, claim or demand, unless the Indemnitee failed to give such notice). If a Third Indemnified Party Claim is made against an Indemnitee, obtains the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case prior written consent of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided.
(d) Notwithstanding the foregoing, howeverif an Indemnified Party determines in good faith that there is a reasonable possibility that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, that the Indemnitee shall have Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to settledefend, compromise compromise, or discharge settle such Third proceeding, and the costs of such defense shall be indemnifiable Damages hereunder. If the Indemnified Party Claim without exclusively assumes the consent defense of any proceeding pursuant to this Section 9.6(d), (i) the second sentence of Section 9.6(c) shall apply, (ii) the Indemnified Party shall consult with the Indemnifying Party with respect to the conduct of such proceeding and shall consider in good faith the recommendations of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim the conduct thereof and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that (iii) the Indemnifying Party may recommend which by its terms (i) obligates assume the Indemnifying Party to pay the full amount control of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third such proceeding if it reasonably determines that the Indemnified Party Claim (is not diligently prosecuting such defense, provides written notice of such determination to the Indemnified Party, and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Indemnified Party shall be entitled have failed to assume take reasonable measure to address the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionmatter.
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Procedures for Indemnification; Third Party Claims. If a claim (a) Except with respect to Tax Claims, which are addressed in Section 7.4, promptly after receipt by or demand is made assertion against an Indemnitee by under Sections 9.1 or 9.2 of any person who is not a party to this Agreement (a "Third Party Claim that may give rise to a Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such then the Indemnitee shall notify the Indemnifying Party as promptly as practicable send notice in writing, writing and in reasonable detail, detail of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice including the factual basis for the Third Party Claim, and, to the extent known, the amount of the Third Party Claim; provided) to the Indemnitor, howeverbut the failure to notify the Indemnitor will not relieve the Indemnitor of any liability that it may have to any Indemnitee, except to the extent that the Indemnitor demonstrates that the defense of such action is prejudiced by the Indemnitee’s failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure notice.
(except that the Indemnifying Party shall not be liable for b) If any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim referred to in Section 9.4(a) is made brought against an IndemniteeIndemnitee and it gives notice to the Indemnitor of the commencement of such Third Party Claim, the Indemnifying Party shall Indemnitor will be entitled to participate in the defense thereof such Third Party Claim and, in to the case of an Indemnifying Party's obligation extent that it wishes (unless (i) the Indemnitor is also a party to indemnify such Third Party Claim and the Indemnitee pursuant determines in good faith that joint representation would be inappropriate, or (ii) the Indemnitor fails to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation provide reasonable assurance to indemnify the Indemnitee thereforof its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim), to assume the defense thereof of such Third Party Claim with counsel selected by satisfactory to the Indemnifying Party; providedIndemnitee and, however, that such counsel is not reasonably objected after notice from the Indemnitor to by the Indemnitee. Should the Indemnifying Party so elect Indemnitee of its election to assume the defense of a such Third Party Claim, the Indemnifying Party shall not Indemnitor will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this Article IX for legal any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case subsequently incurred by the Indemnitee in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. The Indemnitor will have thirty (30) calendar days from receipt of a notice of a Third Party Claim from an Indemnitee pursuant to Section 9.4(a) to assume the defense thereof. If the Indemnifying Party assumes such defenseIndemnitor does not, or is not pursuant to the foregoing permitted to, assume the defense of a proceeding, the Indemnitee shall have the right to participate in assume the defense thereof and employ separate counsel to employ counsel, at its own expense, separate from represent such Indemnitee and the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of such separate counsel employed shall be paid by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereofsuch Indemnitor. If the Indemnifying Indemnitor assumes the defense of a Third Party so elects Claim, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnitor without the Indemnitee’s consent unless (A) there is no finding or admission of any violation of Law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnitor; and (iii) the Indemnitee will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an Indemnitor of the commencement of any Third Party Claim and the Indemnitor does not, within thirty (30) calendar days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee Indemnitor will agree to be bound by any settlement, determination made in such Third Party Claim or any compromise or discharge of settlement effected by the Indemnitee.
(c) Notwithstanding the foregoing, if an Indemnitee determines in good faith that there is a reasonable probability that a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise it or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that its Affiliates other than as a result of monetary damages for which it would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to indemnification under this Agreement, the Indemnitee may, by notice to the Indemnitor, assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending exclusive right to defend, compromise, or settle such Third Party Claim) if , but the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, canIndemnitor will not be separated from bound by any related claim for money damages. If such equitable relief compromise or other relief portion of the Third Party Claim can settlement effected without its consent (which may not be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionunreasonably withheld).
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Procedures for Indemnification; Third Party Claims. (1) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the Vinco Group or the Cryptyde Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 6.2 or Section 6.3, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "“Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the give such Indemnifying Party in writing, and written notice thereof within thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail, including, if known, the amount of the Third Party Claim promptly (and in any event within 15 business days) after receipt loss or Liability claimed or asserted by such Indemnitee third party for which indemnification may be available. Notwithstanding the foregoing, the failure of written notice of the Third any Indemnified Party Claim; provided, however, that failure or other Person to give such notification notice as provided in this Section 6.4 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VI, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the .
(2) An Indemnifying Party shall be entitled (but shall not be required) to participate in assume and control the defense thereof and, in of such Third Party Claim at its expense and through counsel of its choice who is reasonably acceptable to the case Indemnified Party if it gives notice of an Indemnifying Party's obligation its intention to indemnify do so to the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if Indemnified Party within thirty (30) days of the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify receipt of such notice from the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Indemnified Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim to the extent such Third Party Claim (x) is a Proceeding by a Governmental Authority, (y) involves an allegation of a criminal violation or (z) seeks injunctive relief against the Indemnified Party. In the event of a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to the Third Party Claim, the Indemnified Party shall be liable entitled to retain, at the Indemnifying Party’s expense, separate counsel reasonably acceptable to the Indemnifying Party as required by the applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects to undertake any such defense at its own expense, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(3) If, in such notice, an Indemnifying Party elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnified Party of its election as provided in Section 6.4(2), such Indemnified Party may defend such Third Party Claim at the fees cost and expenses expense of counsel the Indemnifying Party; provided, however, that the Indemnifying Party may at any time thereafter assume the defense of such Third Party Claim upon notice to the Indemnified Party (but the reasonable cost and expense incurred by the Indemnitee Indemnified Party in defending such Third Party Claim) if Claim until such date as the Indemnifying Party shall assume the defense of such Third Party Claim seeks an order, injunction shall be paid by the Indemnifying Party).
(4) The Indemnified Party may not settle or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from compromise any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can without the consent of the Indemnifying Party (such consent not to be so separated from that for money damagesunreasonably withheld, conditioned or delayed).
(5) The Indemnifying Party shall have the right to compromise or settle a Third Party Claim the defense of which it shall have assumed pursuant to Section 6.4(2) or Section 6.4(3) and any such settlement or compromise made or caused to be made of a Third Party Claim in accordance with this Article VI shall be binding on the Indemnified Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise. Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party (not to be entitled unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party in connection with such matter, (B) consists solely of monetary consideration borne by a Person other than the Indemnified Party, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(6) In the event of Proceedings in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the Parties shall endeavor to assume substitute the Indemnifying Party for the named defendant, if at all practicable and advisable under the circumstances. If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Proceedings as set forth in this Article VI.
(7) With respect to any Third Party Claim that implicates both the Cryptyde Group and the Vinco Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the Vinco Business or Cryptyde Business, responsibilities for management of defense, and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use reasonable best efforts to cooperate fully and maintain a joint defense (in a manner that will preserve for the relevant members of the Cryptyde Group and Vinco Group the attorney-client privilege, joint defense or other privilege with respect thereto). The Party that is not responsible for managing the defense of the portion such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to money damages. The provisions contained in Section 3.01(d) shall control assist in the situations described particularly in that sectiondefense of such claims (at such Party’s own expense).
Appears in 1 contract
Samples: Separation and Distribution Agreement (Cryptyde, Inc.)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party under Section 11.1 or 11.2 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under such Section, give written notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnifying party’s failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any Proceeding referred to in Section 11.4(a) is brought against an indemnified party and it gives written notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will be entitled to participate in the defense thereof such Proceeding and, to the extent that it wishes (unless the indemnifying party is also a party to such Proceeding and the indemnified party determines in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(agood faith that joint representation would be inappropriate), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such Proceeding with counsel selected by reasonably satisfactory to the Indemnifying Party; providedindemnified party and, however, that such counsel is not reasonably objected after notice from the indemnifying party to by the Indemnitee. Should the Indemnifying Party so elect indemnified party of its election to assume the defense of a Third Party Claimsuch Proceeding, the Indemnifying Party shall not indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnitee indemnified party under this Article XI for legal any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof of a Proceeding: Table of Contents
(i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to employ counsel, at its own expense, separate from the counsel employed indemnification;
(ii) no compromise or settlement of such claims may be effected by the Indemnifying Partyindemnifying party without the indemnified party’s consent unless: (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, it being understood and (B) the sole relief provided is monetary damages that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed are paid in full by the Indemnitee for indemnifying party; and
(iii) the indemnified party will have no liability with respect to any period during which compromise or settlement of such claims effected without its consent, other than reasonable, documented costs of investigation.
(c) Notwithstanding the Indemnifying Party has failed foregoing, if (i) the indemnifying party does not, within ten Business Days after the indemnified party’s notice is given pursuant to assume this Section 11.4, give written notice to the defense thereof. If the Indemnifying Party so elects indemnified party of its election to assume the defense of any Third Party Claimsuch Proceeding as permitted under Section 11.4(b), all or (ii) the indemnified party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability monetary damages for a Third Party Claimwhich it would be entitled to indemnification under this Agreement, then in no event will either case the Indemnitee admit any liability with respect toindemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settlesettle such Proceeding, but the indemnifying party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent unless such determination, compromise or discharge, settlement: (A) results in no finding or admission of any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld violation of Legal Requirements or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent any violation of the Indemnifying Party if rights of any Person and no effect on any other claims that may be made against the Indemnitee releases indemnifying party, and (B) does not obligate the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party indemnifying party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money monetary damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that section.
Appears in 1 contract
Procedures for Indemnification; Third Party Claims. If a claim (a) The following additional provisions shall apply with respect to any claims or demand is made against an Indemnitee demands by any person who is not a party to this Agreement third parties (a "Third Party Claim") as to which any Buyer Indemnified Person seeks indemnification hereunder, except that claims or demands by Taxing Authorities for Taxes shall be governed by Section 13.10. Unless by written notice delivered by any Buyer Indemnified Person to Sellers within thirty (30) days after giving Sellers the applicable Escrow Claim Notice in respect of such Indemnitee is entitled Third Party Claim, or within thirty (30) days after notification by any Buyer Indemnified Person to the Sellers of a Buyer Indemnified Person's intent to seek indemnification pursuant in addition to this Agreementany funds remaining in the Escrow Account or after the Escrow Account has been exhausted (a "Non-Escrow Claim Notice"), such Indemnitee shall notify Buyer Indemnified Person affirmatively li elects not to control the Indemnifying Party in writing, and in reasonable detail, defense of the such Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of notice, the "Non-Defense Election"), such Buyer Indemnified Person will defend, contest, negotiate or settle such Third Party ClaimClaim through counsel of its own selection (who shall be reasonably acceptable to Sellers), and Sellers shall cooperate with and assist such Buyer Indemnified Person in the defense of such claim or demand at Sellers' expense; provided, however, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the Indemnifying Party i) Sellers shall be entitled to participate in the defense thereof andsuch defense, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a)at their own expense, Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected of their choosing and Buyer, such Buyer Indemnified Person and their counsel shall cooperate with Sellers in doing so, and (ii) such Buyer Indemnified Person will not settle, compromise, or offer to settle or compromise any such Third Party Claim unless Sellers provide prior written consent signed by the Indemnifying Party; providedall Sellers, however, that which consent will not be unreasonably withheld or delayed so long as (A) such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a settlement or compromise releases Sellers completely in connection with such Third Party Claim, the Indemnifying Party shall not be liable with no statement as to the Indemnitee for legal or other expenses subsequently incurred an admission of fault by the Indemnitee or on behalf of Sellers and no monetary or nonmonetary relief granted by or imposed upon Sellers and (B) no indemnification under this Article VIII is sought by any Buyer Indemnified Person in connection with the defense thereofThird Party Claim covered by the settlement. In the event indemnification is sought in connection with such settlement, Sellers may withhold such prior written consent in their sole and absolute discretion, and in the event a Buyer Indemnified Person enters into such a settlement without Sellers' prior written consent, no indemnification shall be permitted with respect to such settlement.
(b) If the Indemnifying Buyer Indemnified Person delivers a Non-Defense Election to Sellers within thirty (30) days after giving the Sellers the applicable Escrow Claim Notice or Non-Escrow Claim Notice in respect of such Third Party assumes Claim, Sellers at their own expense shall be entitled to defend, contest, negotiate or settle such defenseThird Party Claim if Sellers provide written notice signed by all Sellers to the Buyer Indemnified Person within forty-five (45) days after receiving the applicable Escrow Claim Notice or Non-Escrow Claim Notice in respect of such Third Party Claim that Sellers elect to control the defense of such Third Party Claim (such notice, a "Sellers Defense Election"), and in the Indemnitee event of such a Sellers Defense Election, Buyer and the Buyer Indemnified Person shall have the right to participate cooperate with and assist Sellers in the defense thereof and to employ counsel, at its own expense, separate from of such Third Party Claim. In the counsel employed by the Indemnifying Party, it being understood event that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume Sellers have assumed the defense of any Third Party Claim, all of the Indemnitees then Sellers shall cooperate with the Indemnifying Party in have complete authority to control the defense of such Third Party Claim and to settle, compromise, or prosecution thereofoffer to settle or compromise such Third Party Claim, and the Buyer Indemnified Person shall have no power or authority to object to any such settlement or compromise. If the Indemnifying Buyer Indemnified Person delivers the Non-Defense Election to Sellers within thirty (30) days after giving Sellers the applicable Escrow Claim Notice or Non-Escrow Claim Notice in respect of such Third Party acknowledges Claim, and Sellers do not deliver a Sellers Defense Election within forty-five (45) days after receiving the applicable Escrow Claim Notice or Non-Escrow Claim Notice in writing liability for a respect of such Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee Buyer Indemnified Person shall have complete authority to control the right to settle, compromise or discharge such Third Party Claim without the consent defense of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and to settle, compromise, or offer to settle or compromise such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree and Sellers shall have no power or authority to object to any settlementsuch settlement or compromise.
(c) In the event such Buyer Indemnified Person chooses to defend, compromise contest, negotiate or discharge of settle a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount through counsel of its indemnification obligation in connection with own selection pursuant to Section 12.9(a), it shall do so at its own expense, and such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party expense shall not be entitled subject to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred indemnification by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled Sellers pursuant to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionthis Article XII.
Appears in 1 contract
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an Indemnified Person under Section 5.2 or Section 6.3 of notice of the commencement of any Proceeding against it, such Indemnified Person will, if a claim or demand is to be made against an Indemnitee by any person who is not a party Indemnifying Party, give notice to this Agreement (a "Third such Indemnifying Party Claim") as of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingwill not relieve the Indemnifying Party of any liability that it may have to any Indemnified Person, and in reasonable detail, except to the extent that the Indemnifying Party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any Proceeding referred to the extent in Section 6.2 or Section 6.3 is brought against an Indemnified Person and it gives notice to the Indemnifying Party shall have been actually prejudiced as a result of the commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall will be entitled to participate in the defense thereof such Proceeding and, to the extent that it requests in writing to the case of an Indemnifying Party's obligation Indemnified Party (unless (i) it is also a party to indemnify such Proceeding and the Indemnitee pursuant to Section 3.01(a)Indemnified Person determines in good faith that joint representation would be inappropriate, Section 3.01(b), Section 3.02 or Section 3.03, if (ii) the Indemnifying Party so chooses fails to provide reasonable assurance to the Indemnified Person of its financial capacity to defend such Proceeding and acknowledges in writing its obligation provide indemnification with respect to indemnify the Indemnitee thereforsuch Proceeding), to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable such Proceeding with counsel satisfactory to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereofIndemnified Person (not to be unreasonably withhold). If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to employ counselindemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Person’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Person, at its own expense, separate from and (B) the counsel employed sole relief provided is monetary damages that are paid in full by the Indemnifying Party, it being understood that ; and (iii) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for of the fees commencement of any Proceeding and expenses it does not, within ten days after the Indemnified Person’s notice is given, give notice to the Indemnified Person of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects its election to assume the defense of any Third Party Claimsuch Proceeding, all of the Indemnitees shall cooperate with the Indemnifying Party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the defense Indemnified Person.
(c) Notwithstanding the foregoing, if an Indemnified Person determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or prosecution thereof. If its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Person may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such Proceeding, but the Indemnifying Party acknowledges in writing liability for will not be bound by any determination of a Third Party Claim, then in no event will the Indemnitee admit Proceeding so defended or any liability with respect to, or settle, compromise or discharge, any Third Party Claim settlement effected without the Indemnifying Party's prior written consent, its consent (which consent shall may not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the withheld).
(d) The Indemnifying Party if hereby consents to the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Third Party Claim Proceeding or the matters alleged therein, and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party process may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation be served on Seller with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related a claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control anywhere in the situations described particularly in that sectionworld.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Rafael Holdings, Inc.)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under such Section, give notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnifying party's failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any Proceeding referred to in Section 10.7(a) is brought against an indemnified party and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will be entitled to participate in the defense thereof such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the case indemnifying party fails to provide reasonable assurance to the indemnified party of an Indemnifying Party's obligation its financial capacity to indemnify the Indemnitee pursuant defend such Proceeding and provide indemnification with respect to Section 3.01(asuch Proceeding), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such Proceeding with counsel selected by satisfactory to the Indemnifying Party; providedindemnified party and, however, that such counsel is not reasonably objected after notice from the indemnifying party to by the Indemnitee. Should the Indemnifying Party so elect indemnified party of its election to assume the defense of a Third Party Claimsuch Proceeding, the Indemnifying Party shall not indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnitee indemnified party under this Article X for legal any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counselof a Proceeding, at its own expense, separate from the counsel employed (i) no compromise or settlement of such claims may be effected by the Indemnifying Partyindemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, it being understood and (B) the sole relief provided is monetary damages that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed are paid in full by the Indemnitee for indemnifying party; and (ii) the indemnified party will have no liability with respect to any period during which the Indemnifying Party has failed to assume the defense thereofcompromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the Indemnifying Party so elects commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party determination made in the defense such Proceeding or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without settlement effected by the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that indemnified party unless the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent indemnifying party is contesting application of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges indemnity in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms good faith.
(ic) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not if an indemnified party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the defense of any Third Party Claim (and shall be liable for exclusive right to defend, compromise, or settle such Proceeding, but the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, canindemnifying party will not be separated from bound by any related claim for money damages. If such equitable relief determination of a Proceeding so defended or other relief portion of the Third Party Claim can any compromise or settlement effected without its consent (which may not be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionunreasonably withheld).
Appears in 1 contract
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party under Section 10.2 or Section 10.3 of notice of the commencement of any proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under such Section, give notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, and in reasonable detail, except to the extent that the indemnified party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnifying party's failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any proceeding referred to in Section 10.8(a) is brought against an indemnified party and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemniteeproceeding, the Indemnifying Party shall indemnifying party will, unless the claim involves taxes, be entitled to participate in the defense thereof such proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the case indemnifying party fails to provide reasonable assurance to the indemnified party of an Indemnifying Party's obligation its financial capacity to indemnify the Indemnitee pursuant defend such proceeding and provide indemnification with respect to Section 3.01(asuch proceeding), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such proceeding with counsel selected by reasonably satisfactory to the Indemnifying Party; providedindemnified party and, however, that such counsel is not reasonably objected after notice from the indemnifying party to by the Indemnitee. Should the Indemnifying Party so elect indemnified party of its election to assume the defense of a Third Party Claimsuch proceeding, the Indemnifying Party shall not indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnitee indemnified party under this Section 10 for legal any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof of a proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that proceeding are within the scope of and subject to employ counsel, at its own expense, separate from the counsel employed indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Partyindemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of legal requirements or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party, it being understood and (B) the sole relief provided is monetary damages that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed are paid in full by the Indemnitee for indemnifying party; and (iii) the indemnified party will have no liability with respect to any period during which the Indemnifying Party has failed to assume the defense thereofcompromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the Indemnifying Party so elects commencement of any proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such proceeding, the indemnifying party will be bound by any Third Party Claimdetermination made in such proceeding or any compromise or settlement effected by the indemnified party.
(c) Notwithstanding the foregoing, all if an indemnified party determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnitees shall cooperate with indemnified party may, by notice to the Indemnifying Party in indemnifying party, assume the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claimexclusive right to defend, then in no event will the Indemnitee admit any liability with respect tocompromise, or settlesettle such proceeding, but the indemnifying party will not be bound by any determination of a proceeding so defended or any compromise or discharge, any Third Party Claim settlement effected without the Indemnifying Party's prior written consent, its consent (which consent shall may not be unreasonably withheld or delayed; providedwithheld).
(d) Sellers hereby consent to the non-exclusive jurisdiction of any court in which a proceeding is brought against any indemnified person by a third party, however, for purposes of any claim that the Indemnitee shall an indemnified person may have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder under this agreement with respect to such Third Party Claim proceeding or the matters alleged therein, and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party process may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation be served on Sellers with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related a claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control anywhere in the situations described particularly in that sectionworld.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tel Instrument Electronics Corp)
Procedures for Indemnification; Third Party Claims. If The procedures to be followed by the Buyer and the Sellers with respect to indemnification hereunder regarding claims by third persons which could give rise to an indemnification obligation hereunder shall be as follows:
(a) Promptly after receipt by any Buyer's Indemnitee or Sellers' Indemnitee of notice of the commencement of any action or proceeding (including, without limitation, any notice relating to a tax audit) or the assertion of any claim by a third person which the person receiving such notice has reason to believe may result in a claim or demand is made against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification it for indemnity pursuant to this Agreement, the indemnified person shall give a written notice of such action, proceeding or claim to the party against whom indemnification pursuant hereto is sought (the "Indemnifying Party"), setting forth in reasonable detail the nature of such action, proceeding or claim, including copies of any documents and written correspondence from such third person to such Buyer's Indemnitee or Sellers' Indemnitee.
(b) The Indemnifying Party shall notify be entitled, at its own expense, to participate in the defense of such action, proceeding or claim, and, if (i) the action, proceeding or claim involved seeks (and continues to seek) solely monetary damages, environmental remediation or related to any liability for taxes, (ii) the Indemnifying Party confirms, in writing, its obligation hereunder to indemnify and hold harmless the Indemnified Party with respect to such damages in their entirety subject to the limits in SECTION 10.7, and (iii) the Indemnifying Party, in the reasonable detail, judgment of the Third Indemnified Party, shall be able to satisfy any adverse judgment as a result of its indemnification obligation with respect to such action, proceeding or claim, then the Indemnifying Party Claim promptly (shall be entitled to assume and in any event within 15 business days) after receipt control such defense with counsel chosen by such Indemnitee of written notice of the Third Indemnifying Party Claim; providedand approved by the Indemnified Party, however, that failure to give such notification which approval shall not affect be unreasonably withheld or delayed. The Indemnified Party shall be entitled to participate therein after such assumption, the indemnification provided hereunder except costs of such participation following such assumption to the extent be at its own expense. Upon assuming such defense, the Indemnifying Party shall have been actually prejudiced full rights to enter into any monetary compromise or settlement which is dispositive of the matters involved; provided, that such settlement is paid in full by the Indemnifying Party and will not have any direct or indirect continuing material adverse effect upon the Indemnified Party; and, provided further, that in the event of settlement of claims for environmental remediation, the Indemnifying Party may perform such other acts, including the placement of monitors or other remediation equipment upon the Leased Properties, as a result of may be necessary to resolve such failure claim.
(except that c) With respect to any action, proceeding or claim as to hich (i) the Indemnifying Party does not have the right to assume the defense or (ii) the Indemnifying Party shall not be liable for any expenses incurred during have exercised its right to assume the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemniteedefense, the Indemnified Party shall assume and control the defense of and contest such action, proceeding or claim with counsel chosen by it and approved by the Indemnifying Party, which approval shall not be unreasonably withheld. The Indemnifying Party shall be entitled to participate in the defense thereof andof such action, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 proceeding or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimclaim, the Indemnifying Party shall not cost of such participation to be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for obligated to pay the reasonable attorneys' fees and expenses of counsel employed by the Indemnitee for any period during which Indemnified Party. The Indemnified Party may not settle such action, proceeding or claim without the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense prior written consent of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that withheld.
(d) Both the Indemnitee Indemnifying Party and the Indemnified Party shall have cooperate fully with one another in connection with the right to settledefense, compromise or discharge such Third Party Claim without the consent settlement of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlementaction, compromise proceeding or discharge if claim, including, without limitation, by making available to the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (other all pertinent information and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with witnesses within its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectioncontrol.
Appears in 1 contract
Procedures for Indemnification; Third Party Claims. If 7.5.1 Promptly after receipt by an indemnified party under Section 7.2 or 7.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under such Section, give notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnifying party’s failure to give such notification shall not affect the indemnification provided hereunder except notice.
7.5.2 If any Proceeding referred to in Section 7.5.1 is brought against an indemnified party and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will, unless the claim involves Taxes, be entitled to participate in the defense thereof such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the case indemnifying party fails to provide reasonable assurance to the indemnified party of an Indemnifying Party's obligation its financial capacity to indemnify the Indemnitee pursuant defend such Proceeding and provide indemnification with respect to Section 3.01(asuch Proceeding), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such Proceeding with counsel selected by satisfactory to the Indemnifying Party; providedindemnified party and, however, that such counsel is not reasonably objected after notice from the indemnifying party to by the Indemnitee. Should the Indemnifying Party so elect indemnified party of its election to assume the defense of a Third Party Claimsuch Proceeding, the Indemnifying Party shall not indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnitee indemnified party under this Section 7 for legal any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to employ counsel, at its own expense, separate from the counsel employed indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Partyindemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Laws or any violation of the rights of any person or entity and no effect on any other claims that may be made against the indemnified party, it being understood and (B) the sole relief provided is monetary damages that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed are paid in full by the Indemnitee for indemnifying party; and (iii) the indemnified party will have no liability with respect to any period during which the Indemnifying Party has failed to assume the defense thereofcompromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the Indemnifying Party so elects commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party determination made in the defense such Proceeding or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without settlement effected by the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. indemnified party.
7.5.3 Notwithstanding the foregoing, the Indemnifying Party shall not if an indemnified party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the defense of any Third Party Claim (and shall be liable for exclusive right to defend, compromise, or settle such Proceeding, but the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, canindemnifying party will not be separated from bound by any related claim for money damages. If such equitable relief determination of a Proceeding so defended or other relief portion of the Third Party Claim can any compromise or settlement effected without its consent (which may not be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionunreasonably withheld).
Appears in 1 contract
Samples: Stock Purchase Agreement (Genetronics Biomedical Corp)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party under Section 5.2 or Section 5.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee indemnifying party under such Section, give notice to the indemnifying party of the commencement of such claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnifying party's failure to give such notice.
(b) If any person who Proceeding referred to in Section 5.6(a) is not brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim involves Taxes, be entitled to participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Agreement Section 5 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party. Notwithstanding the foregoing, if a "Third Party Claim"customer or a supplier any of the Sellers asserts that the Buyer is liable to such customer or supplier for a monetary obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification pursuant to this Section 5 and the Buyer reasonably determines that it has a valid business reason to fulfill such obligations, then (i) as the Buyer shall be entitled to satisfy such obligation without prior notice to or consent from the Sellers, (ii) the Buyer may make a claim for indemnification pursuant to this Section 5 and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 5, for any such Damages for which such Indemnitee it is entitled to indemnification pursuant to the provisions of this Agreement, such Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party ClaimSection 5; provided, however, that failure to give such notification if the Buyer makes a claim for -------- ------- indemnification in accordance with this sentence the Sellers and the Principals shall not affect be deemed to have waived any defense to such claim by the Buyer, notwithstanding the Buyer's prior satisfaction of the obligation for which indemnification provided hereunder except is sought, and it shall not be a defense to the extent Buyer's claim for indemnification that the Indemnifying Party shall have been actually prejudiced Buyer has satisfied the obligation for which indemnification is sought.
(c) Notwithstanding the foregoing, if an indemnified good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of such failure (except that the Indemnifying Party shall not be liable monetary damages for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the Indemnifying Party shall it would be entitled to participate in indemnification under this Agreement, the defense thereof andindemnified party may, in by notice to the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a)indemnifying party, Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party will not be bound by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense any determination of a Third Party ClaimProceeding so defended or any compromise or settlement effected without its consent.
(d) For purposes of providing any notice required under this Section 5, the Indemnifying Party shall not be liable to Buyer may treat the Indemnitee for legal or other expenses subsequently incurred by Representative as the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses authorized representative of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with Sellers and Principals any notice given to the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and Representative shall be liable for the fees deemed given to each Seller and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectioneach Principal.
Appears in 1 contract
Samples: Asset Purchase Agreement (Thermedics Detection Inc)
Procedures for Indemnification; Third Party Claims. If (i) Promptly after receipt by an indemnified party under Section 6(a) or 6(b), as the case may be, of notice of the commencement of any suit or legal proceeding against it or them (a "Proceeding"), such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under such Section 6(a) or 6(b), as the case may be, give notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve such indemnifying party of any liability that it may have to any indemnified party, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnified party's failure to give such notification shall not affect the indemnification provided hereunder except notice.
(ii) If any Proceeding is brought against an indemnified party, and such indemnified party gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will, unless the claim involves taxes only, be entitled to participate in the defense thereof such Proceeding and, to the extent that it wishes (unless (A) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (B) the case indemnifying party fails to provide reasonable assurance to the indemnified party of an Indemnifying Party's obligation its financial capacity to indemnify the Indemnitee pursuant defend such Proceeding and provide indemnification with respect to Section 3.01(asuch Proceeding), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such Proceeding with counsel selected by satisfactory to the Indemnifying Party; providedindemnified party and, however, that such counsel is not reasonably objected after notice from the indemnifying party to by the Indemnitee. Should the Indemnifying Party so elect indemnified party of its election to assume the defense of a Third Party Claimsuch Proceeding, the Indemnifying Party shall not indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnitee indemnified party for legal any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof of a Proceeding: (x) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to employ counselindemnification under Section 6(a) or 6(b) hereof, at its own expense, separate from as the counsel employed case may be; (y) no compromise or settlement of such claims may be effected by the Indemnifying Partyindemnifying party without the indemnified party's written consent unless there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, it being understood and the sole relief provided is monetary damages that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed are paid in full by the Indemnitee for indemnifying party; and (z) the indemnified party will have no liability with respect to any period during which the Indemnifying Party has failed to assume the defense thereofcompromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the Indemnifying Party so elects commencement of any Proceeding and the indemnifying party does not, within ten (10) days after such notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party determination made in the defense such Proceeding or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without settlement effected by the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or dischargeindemnified party. Notwithstanding the foregoing, the Indemnifying Party shall not if an indemnified party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the defense of any Third Party Claim (and shall be liable for exclusive right to defend, compromise, or settle such Proceeding, but the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, canindemnifying party will not be separated from bound by any related claim for money damages. If such equitable relief determination of a Proceeding so defended or other relief portion of the Third Party Claim can any compromise or settlement effected without its consent (which may not be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionunreasonably withheld).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Advanced Technologies Group LTD)
Procedures for Indemnification; Third Party Claims. If (a) Subject to any limitations provided in Section 6.4, promptly after receipt by an indemnified party under Section 6.2 or Section 6.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is made to be notice to the indemnifying party of the commencement of such claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice.
(b) If any Proceeding referred to in Section 6.5(a) is brought against an Indemnitee by any person who indemnified party and it gives notice to the indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim involves Taxes, be entitled to participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is not also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 6 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party. Notwithstanding the foregoing, if a "Third Party Claim"customer or a supplier of any Seller asserts that the Buyer is liable to such customer or supplier for a monetary obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification pursuant to this Section 6 and the Buyer reasonably determines that it has a valid business reason to fulfill such obligations, then (i) as the Buyer shall be entitled to satisfy such obligation without prior notice to or consent from the Sellers or the Seller Representative, (ii) the Buyer may make a claim for indemnification pursuant to this Section 6 and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 6, for any such Damages for which such Indemnitee it is entitled to indemnification pursuant to the provisions of this Agreement, such Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party ClaimSection 6; provided, however, that failure to give such notification if the Buyer makes a claim for indemnification in accordance with this sentence the Sellers and the Stockholders shall not affect be deemed to have waived any defense to such claim by the Buyer, notwithstanding the Buyer's prior satisfaction of the obligation for which indemnification provided hereunder except is sought, and it shall not be a defense to the extent Buyer's claim for indemnification that the Indemnifying Party shall have been actually prejudiced Buyer has satisfied the obligation for which indemnification is sought.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Proceeding for which it would be entitled to affect it or its affiliates other than solely as a result of such failure (except that monetary damages the Indemnifying Party shall not be liable for any expenses incurred during indemnified party may, by notice to the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemniteeindemnifying party, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by exclusive right to defend, compromise, or settle such Proceeding, and the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party indemnifying party shall not be liable to the Indemnitee indemnified party under this Section 6 for legal any reasonable fees of counsel and any other costs or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at indemnified party as a result of its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses assumptions of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of such proceeding, but the indemnifying party will not be bound by any Third Party Claim, all determination of the Indemnitees shall cooperate with the Indemnifying Party in the defense a Proceeding so defended or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim settlement effected without the Indemnifying Party's prior written consent, its consent (which consent shall may not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent withheld).
(d) Each of the Indemnifying Party if Sellers and the Indemnitee releases Stockholders hereby consents to the Indemnifying Party from its indemnification obligation hereunder non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Third Party Claim Proceeding or the matters alleged therein, and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that process may be served on the Indemnifying Party's indemnification obligation Sellers and the Stockholders with respect to such Third Party Claim shall not exceed a claim anywhere in the amount that would be world.
(e) For purposes of providing any notice required to be paid by or on behalf under this Section 6, the Buyer may treat the Seller Representative as the authorized representative of all of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding Sellers and the foregoing, Stockholders and any notice given to the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and Seller Representative shall be liable for the fees deemed given to each Seller and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionStockholder.
Appears in 1 contract
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party under Section 7.2 or Section 7.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party under such Section, give notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnified party's failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any Proceeding referred to in Section 7.5(a) is brought against an indemnified party and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will be entitled to participate in the defense thereof such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the case indemnifying party fails to provide reasonable assurance to the indemnified party of an Indemnifying Party's obligation its financial capacity to indemnify the Indemnitee pursuant defend such Proceeding and provide indemnification with respect to Section 3.01(asuch Proceeding), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such Proceeding with counsel selected by reasonably satisfactory to the Indemnifying Party; providedindemnified party, howeverprovided the indemnifying party shall consult with the indemnified party regarding any material strategic decisions with respect to such Proceeding and shall allow the indemnified party the right to participate in such Proceeding and, that such counsel is not reasonably objected after notice from the indemnifying party to by the Indemnitee. Should the Indemnifying Party so elect indemnified party of its election to assume the defense of a Third Party Claimsuch Proceeding, the Indemnifying Party shall not indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnitee indemnified party under this Section 7 for legal any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claima Proceeding, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in (i) no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim settlement of such claims may be effected by the indemnifying party without the Indemnifying Partyindemnified party's prior written consent, consent (which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise ) unless (A) there is no finding or discharge such Third Party Claim without the consent admission of any violation of Legal Requirements or any violation of the Indemnifying Party if rights of any Person and no effect on any other claims that may be made against the Indemnitee releases indemnified party, and (B) the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect sole relief provided is monetary damages that are paid in full by the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim indemnifying party; and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation indemnified party will have no liability with respect to any compromise or settlement of such Third Party Claim shall not exceed the amount that would be required claims effected without its consent. If notice is given to be paid by or on behalf an indemnifying party of the Indemnifying Party commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in connection with such proposed settlement, Proceeding or any compromise or dischargesettlement effected by the indemnified party in good faith, after notice to the indemnifying party and provided the indemnified party provides the indemnifying party a reasonable opportunity to consult with the indemnified party regarding such settlement or compromise. Notwithstanding the foregoing, if a customer or a supplier of any Seller asserts that the Indemnifying Party shall not Buyer is liable to such customer or supplier for a monetary obligation which may constitute or result in Damages for which the Buyer may be entitled to assume indemnification pursuant to this Section 7 and the defense of any Third Party Claim Buyer reasonably determines that it has a valid business reason to fulfill such obligations, then (and shall be liable for i) the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party Buyer shall be entitled to satisfy such obligation without prior notice to or consent from the Sellers or the Stockholder, (ii) the Buyer may make a claim for indemnification pursuant to this Section 7 and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 7, for any such Damages for which it is entitled to indemnification pursuant to the provisions of this Section 7; PROVIDED, HOWEVER, that if the Buyer makes a claim for indemnification in accordance with this sentence the Sellers and the Stockholder shall not be deemed to have waived any defense to such claim by the Buyer, notwithstanding the Buyer's prior satisfaction of the obligation for which indemnification is sought, and it shall not be a defense to the Buyer's claim for indemnification that the Buyer has satisfied the obligation for which indemnification is sought.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the defense exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(d) Each of the portion relating Sellers and the Stockholder hereby consents to money damages. The provisions contained the non-exclusive jurisdiction of any court in Section 3.01(d) shall control which a Proceeding is brought against any Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the matters alleged therein, and agrees that process may be served on the Sellers and the Stockholder with respect to such a claim anywhere in the situations described particularly in that sectionworld.
Appears in 1 contract
Samples: Asset Purchase Agreement (Allied Healthcare Products Inc)
Procedures for Indemnification; Third Party Claims. (a) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the NCR Group or the ATMCo Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 8.1 or Section 8.2, or any other Section of this Agreement (collectively, a "Third “Third-Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the promptly give such Indemnifying Party written notice thereof but no later than thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in writingreasonable detail and shall include: (i) the basis for, and nature of, such Third-Party Claim, including the facts constituting the basis for such Third-Party Claim; (ii) the estimated amount of losses (to the extent so estimable) that have been or may be sustained by the indemnitee in reasonable detail, connection with such Third-Party Claim; and (iii) copies of all notices and documents (including court papers) received by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of indemnitee relating to the Third Third-Party Claim; provided, however, that any such notice need only specify such information to the knowledge of the indemnitee as of the date of such notice and shall not limit or prejudice any of the rights or remedies of any indemnitee on the basis of any limitations on the information included in such notice, including any such limitations made in good faith to preserve the attorney-client privilege, work product doctrine or any other similar privilege or doctrine. Notwithstanding the foregoing, the failure of any Indemnified Party or other Person to give such notification notice as provided in this Section 8.3 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VIII, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If .
(b) Promptly after tender for indemnification of a Third Third-Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a8.3(a), Section 3.01(b), Section 3.02 but in no event more than fifteen (15) days or Section 3.03, if such shorter time that the Indemnifying Indemnified Party so chooses and acknowledges determines in writing its obligation to indemnify good faith that the Indemnitee therefor, proper defense of the Third-Party Claim requires that the election to assume the defense thereof with of such claim be made in fewer than fifteen (15) days, an Indemnifying Party shall elect and notify the Indemnified Party whether it intends to defend such Third-Party Claim at its expense and through counsel selected by the Indemnifying Partyof its choice; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim to the extent such Third-Party Claim (x) is a Proceeding by a Governmental Authority, or (y) involves an allegation of a criminal violation. In the event that the Indemnifying Party elects to defend the Third-Party Claim, the Indemnified Party shall grant the Indemnifying Party sole control of the defense, including the selection of counsel, and settlement of the Third-Party Claim, subject to the limitations of Section 8.3(c). In the event the Indemnifying Party is controlling the defense of a Third-Party Claim and there is a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such Third-Party Claim, the Indemnified Party shall be liable for entitled to retain, at its own expense, separate counsel reasonably acceptable to the fees and expenses of counsel incurred Indemnifying Party as required by the Indemnitee applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects (and is permitted) to undertake any such defense, it shall do so at its own expense and the Indemnified Party shall cooperate with the Indemnifying Party in defending such Third defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third-Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(c) If an Indemnifying Party elects, following delivery of a notice of a Third-Party Claim, not to assume responsibility for defending a Third-Party Claim, or fails to defend a properly noticed Third-Party Claim as provided in Section 8.3(a), such Indemnified Party may defend such Third-Party Claim at the cost and expense of the Indemnifying Party. If the Indemnifying Party assumes the responsibility for defending a Third-Party Claim and the nature of such Third-Party Claim changes such that the Indemnifying Party would no longer be entitled to assume the defense of such Third-Party Claim pursuant to Section 8.3(b), the portion relating Indemnified Party may, at its election, assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection with such defense.
(d) The Indemnifying Party shall have the right to money damages. The provisions contained compromise or settle a Third-Party Claim the defense of which it shall have assumed pursuant to Section 8.3(b) and any such settlement or compromise made or caused to be made of a Third-Party Claim in Section 3.01(d) accordance with this Article VIII shall control be binding on the Indemnified Party, in the situations described particularly same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in that sectionthe amount of such settlement or compromise. Notwithstanding the foregoing sentence, (i) the Indemnifying Party shall not settle any such Third-Party Claim without the written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party from the Third-Party Claim in connection with such matter, (B) consists solely of monetary consideration the Indemnifying Party has agreed to pay in full, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law, and (ii) if NCR is the Indemnified Party then ATMCo shall reasonably cooperate with NCR in connection with the Third-Party Claim if and to the extent affecting the ownership, enforceability or validity of a Licensed Mark.
Appears in 1 contract
Samples: Trademark License and Use Agreement (NCR Atleos Corp)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an indemnified party under Section 5.2 or Section 5.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand is to be made against an Indemnitee indemnifying party under such Section, give notice to the indemnifying party of the commencement of such claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnifying party's failure to give such notice.
(b) If any person who Proceeding referred to in Section 5.6(a) is not brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim involves Taxes, be entitled to participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Agreement Section 5 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case 30PAGE subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (ii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party. Notwithstanding the foregoing, if a "Third Party Claim"customer or a supplier any of the Sellers asserts that the Buyer is liable to such customer or supplier for a monetary obligation which may constitute or result in Damages for which the Buyer may be entitled to indemnification pursuant to this Section 5 and the Buyer reasonably determines that it has a valid business reason to fulfill such obligations, then (i) as the Buyer shall be entitled to satisfy such obligation without prior notice to or consent from the Sellers, (ii) the Buyer may make a claim for indemnification pursuant to this Section 5 and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 5, for any such Damages for which such Indemnitee it is entitled to indemnification pursuant to the provisions of this Agreement, such Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party ClaimSection 5; provided, however, that failure to give such notification if the Buyer makes a claim for indemnification in accordance with this sentence the Sellers and the Principals shall not affect be deemed to have waived any defense to such claim by the Buyer, notwithstanding the Buyer's prior satisfaction of the obligation for which indemnification provided hereunder except is sought, and it shall not be a defense to the extent Buyer's claim for indemnification that the Indemnifying Party shall have been actually prejudiced Buyer has satisfied the obligation for which indemnification is sought.
(c) Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of such failure (except that the Indemnifying Party shall not be liable monetary damages for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the Indemnifying Party shall it would be entitled to participate in indemnification under this Agreement, the defense thereof andindemnified party may, in by notice to the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a)indemnifying party, Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party will not be bound by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense any determination of a Third Party ClaimProceeding so defended or any compromise or settlement effected without its consent.
(d) For purposes of providing any notice required under this Section 5, the Indemnifying Party shall not be liable to Buyer may treat the Indemnitee for legal or other expenses subsequently incurred by Representative as 31PAGE the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses authorized representative of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with Sellers and Principals any notice given to the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and Representative shall be liable for the fees deemed given to each Seller and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectioneach Principal.
Appears in 1 contract
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by an Indemnified Person under Section 9.2 of notice of the commencement of any proceeding against it, such Indemnified Person will, if a claim or demand is to be made against an Indemnitee by any person who is not a party Indemnitor under such Section, give notice to this Agreement (a "Third Party Claim") as the Indemnitor of the commencement of such claim, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingIndemnitor will not relieve the Indemnitor of any liability that it may have to any Indemnified Person, and in reasonable detail, except to the extent that the Indemnitor demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification notice. The Indemnified Person shall not affect take all commercially reasonable steps to mitigate all Damages, including availing itself of any reasonable and prudent defenses, limitations, rights of contribution and claims against third parties and other rights at law, and shall provide such evidence and documentation of the indemnification provided hereunder except nature and extent of any Damages as may reasonably be requested by the indemnifying party.
(b) If any proceeding referred to in Section 9.5(a) is brought against an Indemnified Person and it gives notice to an Indemnitor of the extent the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemniteeproceeding, the Indemnifying Party shall Indemnitor will be entitled to participate in the defense thereof such proceeding and, to the extent that it wishes (unless (i) the Indemnitor is also a party to such proceeding and the Indemnified Person determines in good faith that joint representation would be inappropriate or (ii) the case Indemnitor fails to provide reasonable assurance to the Indemnified Person of an Indemnifying Party's obligation its financial capacity to indemnify the Indemnitee pursuant defend such proceeding and provide indemnification with respect to Section 3.01(asuch proceeding), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such proceeding with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable satisfactory to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defenseIndemnified Person and, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate after notice from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that section.Indemnitor
Appears in 1 contract
Samples: Asset Purchase Agreement (Rti International Metals Inc)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by a Buyer Indemnified Person or a Seller Indemnified Person (an "Indemnified Person") under Section 5.2 or Section 5.3 of notice of the commencement of any Proceeding against it for which a claim or demand is to be made against an Indemnitee indemnifying party under such Section, the Indemnified Person will give notice to the indemnifying party of the commencement of such Proceeding, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any Indemnified Person, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Indemnified Person's failure to give such notice.
(b) If any person who Proceeding referred to in Section 5.6(a) is not brought against an Indemnified Person and it gives notice to the indemnifying party of the commencement of such Proceeding, the indemnifying party will be entitled to participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the Indemnified Person of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Person and, after notice from the indemnifying party to the Indemnified Person of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the Indemnified Person under this Section 5 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnified Person in connection with the defense of such Proceeding, other than reasonable costs of investigation.
(c) If the indemnifying party assumes the defense of a Proceeding referred to in Section 5.6(a), (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification hereunder; (ii) no compromise or settlement of such claims may be effected by the indemnifying party without the Indemnified Person's consent (which will not be unreasonably withheld) unless (A) there is no finding or admission of any violation of Legal Requirements by the Indemnified Person or any violation of the rights by the Indemnified Person of any Person and no effect on any other claims that may be made against the Indemnified Person, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent (which will not be unreasonably withheld).
(d) If notice is given to an indemnifying party of the commencement of any Proceeding referred to in Section 5.6(a) and the indemnifying party does not, within ten business days after the Indemnified Person's notice is given, give notice to the Indemnified Person of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnified Person.
(e) Notwithstanding the foregoing, if a "Third Party Claim") as customer or a supplier of Seller asserts that either of Buyers is liable to such customer or supplier for a monetary obligation which such Indemnitee is may constitute or result in Damages for which Buyers may be entitled to indemnification pursuant to this AgreementSection 5 and Buyers reasonably determine that there is a valid business reason to fulfill such obligations, then (i) Buyers shall be entitled to satisfy such Indemnitee obligations without prior notice to or consent from Seller, (ii) Buyers may make a claim for indemnification pursuant to this Section 5 and (iii) Buyers shall notify be reimbursed, in accordance with the Indemnifying Party in writingprovisions of this Section 5, and in reasonable detail, for any Damages for which they are entitled to indemnification pursuant to the provisions of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claimthis Section 5; provided, however, that failure to give such notification if Buyers make a claim for indemnification in accordance with this sentence Seller shall not be deemed to have waived any defense to such claim by Buyers.
(f) Notwithstanding the foregoing, if an Indemnified Person reasonably determines in good faith that there is a reasonable probability that a Proceeding will adversely affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced it or its Related Persons other than as a result of such failure (except that the Indemnifying Party shall not be liable monetary damages for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemnitee, the Indemnifying Party shall it would be entitled to participate indemnification under this Agreement, the Indemnified Person may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
(g) Buyers and Seller hereby consent to the non-exclusive jurisdiction of any court in which a Proceeding is brought against an Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the matters alleged therein, and agrees that process may be served on Seller with respect to such a claim anywhere in the world.
(h) With respect to any Proceeding subject to indemnification under this Section 5: (i) both the Indemnified Person and the indemnifying party, as the case may be, shall be kept fully informed of the Proceeding at all stages thereof where such party is not represented by its own counsel, and (ii) the parties agree to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense thereof andof any Proceeding brought by any third party.
(i) With respect to any Proceeding subject to indemnification under this Section 5, the parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential business records and the attorney-client and work-product privileges. In connection therewith, each party agrees that: (i) it will use its best efforts, in any Proceeding in which it has assumed or participated in the case defense, to avoid production of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(aconfidential business records (consistent with applicable law and rules of procedure), Section 3.01(b), Section 3.02 and (ii) all communications between any party hereto and counsel responsible for or Section 3.03, if the Indemnifying Party so chooses and acknowledges participating in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party ClaimProceeding shall, all of to the Indemnitees shall cooperate with the Indemnifying Party in the defense extent possible, be made so as to reserve any applicable attorney-client or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionwork-product privilege.
Appears in 1 contract
Procedures for Indemnification; Third Party Claims. (a) If a claim an Indemnified Party shall receive notice or demand is made against an Indemnitee otherwise learn of the assertion by any person Person who is not a party member of the NCR Group or the ATMCo Group, as the case may be, of any claim, or of the commencement by any such Person of any Proceedings, with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to Section 6.2 or Section 6.3, or any other Section of this Agreement or any Ancillary Agreement (collectively, a "Third “Third-Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement”), such Indemnitee Indemnified Party shall notify the promptly give such Indemnifying Party written notice thereof, but no later than thirty (30) days after such Indemnified Party received notice or otherwise learned of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in writingreasonable detail and shall include: (i) the basis for, and nature of, such Third-Party Claim, including the facts constituting the basis for such Third-Party Claim; (ii) the estimated amount of losses (to the extent so estimable) that have been or may be sustained by the indemnitee in reasonable detail, connection with such Third-Party Claim; and (iii) copies of all notices and documents (including court papers) received by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of indemnitee relating to the Third Third-Party Claim; provided, however, that any such notice need only specify such information to the knowledge of the indemnitee as of the date of such notice and shall not limit or prejudice any of the rights or remedies of any indemnitee on the basis of any limitations on the information included in such notice, including any such limitations made in good faith to preserve the attorney-client privilege, work product doctrine or any other similar privilege or doctrine. Notwithstanding the foregoing, the failure of any Indemnified Party or other Person to give such notification notice as provided in this Section 6.4 shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article VI, except to the extent the that such Indemnifying Party shall have been is actually materially prejudiced as a result of by such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If .
(b) Promptly after tender for indemnification of a Third Third-Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a6.4(a), Section 3.01(b), Section 3.02 but in no event more than fifteen (15) days or Section 3.03, if such shorter time that the Indemnifying Indemnified Party so chooses and acknowledges determines in writing its obligation to indemnify good faith that the Indemnitee therefor, proper defense of the Third-Party Claim requires that the election to assume the defense thereof with of such claim be made in fewer than fifteen (15) days, an Indemnifying Party shall elect and notify the Indemnified Party whether it intends to defend such Third-Party Claim at its expense and through counsel selected by the Indemnifying Partyof its choice; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim to the extent such Third-Party Claim (x) is a Proceeding by a Governmental Authority, or (y) involves an allegation of a criminal violation. In the event that the Indemnifying Party elects to defend the Third-Party Claim, the Indemnified Party shall grant the Indemnifying Party sole control of the defense, including the selection of counsel, and settlement of the Third-Party Claim, subject to the limitations of Section 6.4(c). In the event the Indemnifying Party is controlling the defense of a Third-Party Claim and there is a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such Third-Party Claim, the Indemnified Party shall be liable for entitled to retain, at its own expense, separate counsel reasonably acceptable to the fees and expenses of counsel incurred Indemnifying Party as required by the Indemnitee applicable rules of professional conduct with respect to such matter. If the Indemnifying Party elects (and is permitted) to undertake any such defense, it shall do so at its own expense and the Indemnified Party shall cooperate with the Indemnifying Party in defending such Third defense and make available to the Indemnifying Party all witnesses, pertinent Records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. Similarly, if the Indemnified Party is conducting the defense against any such Third-Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, pertinent Records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.
(c) If an Indemnifying Party elects, following delivery of a notice of a Third-Party Claim, not to assume responsibility for defending a Third-Party Claim, or fails to defend a properly noticed Third-Party Claim as provided in Section 6.4(a), such Indemnified Party may defend such Third-Party Claim at the cost and expense of the Indemnifying Party. If the Indemnifying Party assumes the responsibility for defending a Third-Party Claim and the nature of such Third-Party Claim changes such that the Indemnifying Party would no longer be entitled to assume the defense of such Third-Party Claim pursuant to Section 6.4(b), the portion Indemnified Party may, at its election, assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection with such defense.
(d) The Indemnified Party may not settle or compromise any Third-Party Claim without the consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
(e) The Indemnifying Party shall have the right to compromise or settle a Third-Party Claim the defense of which it shall have assumed pursuant to Section 6.4(b) and any such settlement or compromise made or caused to be made of a Third-Party Claim in accordance with this Article VI shall be binding on the Indemnified Party, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise. Notwithstanding the foregoing sentence, the Indemnifying Party shall not settle any such Third-Party Claim without the written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement (A) completely and unconditionally releases the Indemnified Party from the Third-Party Claim in connection with such matter, (B) consists solely of monetary consideration the Indemnifying Party has agreed to pay in full, and (C) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.
(f) Notwithstanding the foregoing in this Section 6.4, with respect to any Third-Party Claim that implicates both the ATMCo Group and the NCR Group in a material fashion due to the allocation of Liabilities or potential impact on the operation of the NCR Business or ATMCo Business (a “Mixed Claim”), the Parties agree that NCR shall control the defense of any Mixed Claim and to use reasonable best efforts to cooperate fully and, and where counsel so advises, maintain a joint defense (in a manner that will preserve for the relevant members of the ATMCo Group and NCR Group the attorney-client privilege, joint defense or other privilege with respect thereto). ATMCo shall, upon its reasonable request, be consulted with respect to significant matters relating to money damages. The provisions contained in Section 3.01(d) shall control any Mixed Claim and may, if necessary or helpful, retain counsel to assist in the situations described particularly defense of such claims (at its own expense). NCR may settle any Mixed Claim without the consent of ATMCo (and subjecting ATMCo to Liability to any portion thereof that is an ATMCo Liability), where (x) such settlement provides only for monetary and no equitable or injunctive relief (at least with respect to ATMCo) and (y) NCR’s out-of-pocket payments for such monetary relief would be greater than ATMCo’s. Other than as set forth in that sectionthe preceding sentence, NCR shall not settle any Mixed Claim without the prior written consent of ATMCo (not to be unreasonably withheld, conditioned or delayed).
(g) For the avoidance of doubt, any notice or claim delivered in accordance with this Section 6.8 shall constitute a Dispute Notice under Article VIII and should any Party dispute its obligation to provide indemnification as set forth therein it shall be entitled to assert those rights available to it by delivering a Notice of Disagreement pursuant to, and in accordance with, Article VIII.
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Samples: Separation and Distribution Agreement (NCR Atleos Corp)
Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by a Buyer Indemnified Person or Seller Indemnified Person (each, an “Indemnified Person”) under Section 6.2 or Section 6.3, respectively, of notice of the commencement of any Proceeding against it, such Indemnified Person will, if a claim or demand is to be made against an Indemnitee by any person who is not a indemnifying party, give notice to such indemnifying party of the commencement of such claim, but the failure to this Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any Indemnified Person, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any Proceeding referred to in Section 6.2 or Section 6.3 is brought against an Indemnified Person and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will be entitled to participate in the defense thereof such Proceeding and, to the extent that it requests in writing to the case Indemnified Party (unless (i) it is also a party to such Proceeding and the Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the Indemnified Person of an Indemnifying Party's obligation its financial capacity to indemnify the Indemnitee pursuant defend such Proceeding and provide indemnification with respect to Section 3.01(asuch Proceeding), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such Proceeding with counsel selected satisfactory to the Indemnified Person (not to be unreasonably withheld). If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party; providedindemnifying party without the Indemnified Person’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Person, however, and (B) the sole relief provided is monetary damages that such counsel is not reasonably objected to are paid in full by the Indemniteeindemnifying party; and (iii) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Should If notice is given to the Indemnifying Party so elect indemnifying party of the commencement of any Proceeding and it does not, within ten days after the Indemnified Person’s notice is given, give notice to the Indemnified Person of its election to assume the defense of a Third Party Claimsuch Proceeding, the Indemnifying Party shall indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnified Person.
(c) Notwithstanding the foregoing, if an Indemnified Person determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Person may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party will not be liable to the Indemnitee for legal bound by any determination of a Proceeding so defended or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim settlement effected without the Indemnifying Party's prior written consent, its consent (which consent shall may not be unreasonably withheld or delayed; provided, however, withheld).
(d) The indemnifying party hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that the Indemnitee shall an Indemnified Person may have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder under this Agreement with respect to such Third Party Claim Proceeding or the matters alleged therein, and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party process may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation be served on Seller with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related a claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control anywhere in the situations described particularly in that sectionworld.
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Procedures for Indemnification; Third Party Claims. If a claim or demand is made against an Indemnitee 7.4.1 Promptly after receipt by any person party hereto entitled to indemnification pursuant to Section 7.2 or Section 7.3 (each, an “Indemnified Party”) of notice of the commencement of any Proceeding by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a "Third “Third-Party Claim"”) as against such Indemnified Party with respect to which such Indemnitee any other party hereto is entitled obligated to provide indemnification pursuant to under this AgreementAgreement (an “Indemnifying Party”), such Indemnitee shall notify Indemnified Party will give prompt written notice (a “Third-Party Claim Notice”) to the Indemnifying Party in writingof the commencement of such Third-Party Claim. The failure to give such prompt Third-Party Claim Notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Third Party Claim promptly (and in any event within 15 business days) after receipt Damages that have been or may be sustained by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnified Party. The Indemnifying Party shall have been actually prejudiced as a result the right to participate in, or by giving written notice to the Indemnified Party within ten (10) days after the Indemnifying Party’s receipt of the Third-Party Claim Notice, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such failure (except defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 7.4.2, it shall not be liable for have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any expenses incurred during the period in which the Indemnitee failed to give such notice)Third-Party Claim. If a Third Party Claim is made against an Indemnitee, the Indemnifying The Indemnified Party shall be entitled have the right, at its own cost and expense, to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying any Third-Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof Claim with counsel selected by it subject to the Indemnifying Party; provided, however, that such counsel is not reasonably objected ’s right to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with control the defense thereof. If the Indemnifying Party assumes elects not to compromise or defend such defenseThird-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnitee Indemnified Party may pay, compromise, defend such Third-Party Claim and seek indemnification for any and all Damages based upon, arising from or relating to such Third-Party Claim. The Seller and the Buyer shall have the right to participate cooperate with each other in all reasonable respects in connection with the defense thereof of any Third-Party Claim, including making available records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual documented out-of-pocket expenses) to employ counselthe defending party, at its own expense, separate from management employees of the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall non-defending party as may be liable reasonably necessary for the fees and expenses preparation of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereofof such Third-Party Claim. If the Indemnifying Party so elects to assume the defense of any Third Third-Party Claim, all such election to assume such defense shall conclusively establish for purposes of this Agreement that the Indemnitees shall cooperate with claims comprising such Third-Party Claim are within the scope and subject to indemnification by the Indemnifying Party in the defense or prosecution thereof. If under this Article 7.
7.4.2 Notwithstanding any other provision of this Agreement, the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, shall not compromise or discharge, settle any Third Third-Party Claim without the Indemnifying Indemnified Party's prior written consent’s consent unless (i) there is no finding or admission of any violation of Laws or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, (ii) the sole relief provided is monetary damages that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of are paid in full by the Indemnifying Party if and no injunctive or other restrictive relief is imposed upon the Indemnitee releases Indemnified Party; (iii) the Indemnifying Indemnified Party shall have been fully and unconditionally released from its indemnification obligation hereunder all liability with respect to such Third Party Claim and such settlement, any compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third settlement of such Third-Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Indemnified Party shall not be entitled to assume may take over the control of the defense or settlement of any Third a Third-Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee with respect to which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled has assumed defense at any time if it irrevocably waives its right to assume indemnity under Section 7.2 or Section 7.3, as the defense of the portion relating case may be, with respect to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectionsuch Third-Party Claim.
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Procedures for Indemnification; Third Party Claims. If (a) Promptly after receipt by a party entitled to indemnification under Section 7.2 or 7.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim or demand for indemnification is to be made against an Indemnitee by any person who is not a indemnifying party under Article VII, give written notice to this Agreement (a "Third Party Claim") as the indemnifying party of the commencement of such Proceeding with supporting analysis or appropriate documentation, but the failure to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writingindemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party under Article VII, and in reasonable detail, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that indemnifying party’s failure to give such notification shall not affect the indemnification provided hereunder except notice.
(b) If any Proceeding referred to in Section 7.7(a) is brought against an indemnified party and it gives notice to the extent indemnifying party of the Indemnifying Party shall have been actually prejudiced as a result commencement of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an IndemniteeProceeding, the Indemnifying Party shall indemnifying party will be entitled to participate in the defense thereof such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the case indemnifying party fails to provide reasonable assurance to the indemnified party of an Indemnifying Party's obligation its financial capacity to indemnify the Indemnitee pursuant defend such Proceeding and provide indemnification with respect to Section 3.01(asuch Proceeding), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof of such Proceeding with counsel selected by reasonably satisfactory to the Indemnifying Party; providedindemnified party and, however, that such counsel is not reasonably objected after notice from the indemnifying party to by the Indemnitee. Should the Indemnifying Party so elect indemnified party of its election to assume the defense of a Third Party Claimsuch Proceeding, the Indemnifying Party shall not indemnifying party will not, as long as it conducts such defense with reasonable diligence, be liable to the Indemnitee indemnified party under this Article for legal any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense thereofof such Proceeding, other than reasonable costs of investigation. If the Indemnifying Party indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense of any Third Party Claima Proceeding, all of the Indemnitees shall cooperate with the Indemnifying Party except as set forth in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent last sentence of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that section.this Section
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Procedures for Indemnification; Third Party Claims. If a claim or demand is made against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim promptly (and in any event within 15 business days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 15 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. 27 27 If a Third Party Claim is made against an Indemnitee, the Indemnifying Party shall be entitled to participate in the defense thereof and, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 or Section 3.03, if the Indemnifying Party it so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, provided that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereofthereof (other than during the period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above). If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise significantly adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which and that by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation the liability in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which that would not otherwise adversely affect the Indemnitee; and provided further provided, however, that the 28 28 Indemnitee may refuse to agree to any such proposed settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Indemnification required by this Section 3.01(d) 15 shall control in be made by periodic payments of the situations described particularly in amount thereof during the course of the investigation or defense, as and when bills are received or loss, liability, claim, damage or expense is incurred. All claims under Section 15 that sectionare Third Party Claims shall be governed by this Section 15(e).
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Samples: Employee Benefit Services and Liability Agreement (Itt Corp /Nv/)
Procedures for Indemnification; Third Party Claims. If The procedures to be followed by the Buyer and the Sellers with respect to indemnification hereunder regarding claims by third persons which could give rise to an indemnification obligation hereunder shall be as follows:
(a) Promptly after receipt by any Indemnified Person of notice of the commencement of any action or proceeding (including, without limitation, any notice relating to a tax audit) or the assertion of any claim by a third person which the person receiving such notice has reason to believe may result in a claim or demand is made against an Indemnitee by any person who is not a party to this Agreement (a "Third Party Claim") as to which such Indemnitee is entitled to indemnification it for indemnity pursuant to this Agreement, the Indemnified Person shall give a written notice of such Indemnitee action, proceeding or claim to the party against whom indemnification pursuant hereto is sought (the "Indemnifying Party"), setting forth in reasonable detail the nature of such action, proceeding or claim, including copies of any documents and written correspondence from such third person to such Indemnified Party.
(b) The Indemnifying Party shall notify be entitled, at its own expense, to participate in the defense of such action, proceeding or claim, and, if (i) the action, proceeding or claim involved seeks (and continues to seek) solely monetary damages, environmental remediation or related to any liability for taxes, (ii) the Indemnifying Party confirms, in writing, its obligation hereunder to indemnify and hold harmless the Indemnified Party with respect to such damages in their entirety subject to the limits in SECTION 10.7, and (iii) the Indemnifying Party, in the reasonable detail, judgment of the Third Indemnified Party, shall be able to satisfy any adverse judgment as a result of its indemnification obligation with respect to such action, proceeding or claim, then the Indemnifying Party Claim promptly (shall be entitled to assume and in any event within 15 business days) after receipt control such defense with counsel chosen by such Indemnitee of written notice of 43 the Third Indemnifying Party Claim; providedand approved by the Indemnified Party, however, that failure to give such notification which approval shall not affect be unreasonably withheld or delayed. The Indemnified Party shall be entitled to participate therein after such assumption, the indemnification provided hereunder except costs of such participation following such assumption to the extent be at its own expense. Upon assuming such defense, the Indemnifying Party shall have been actually prejudiced full rights to enter into any monetary compromise or settlement which is dispositive of the matters involved; provided, that such settlement is paid in full by the Indemnifying Party and will not have any direct or indirect continuing material adverse effect upon the Indemnified Party; and, provided further, that in the event of settlement of claims for environmental remediation, the Indemnifying Party may perform such other acts, including the placement of monitors or other remediation equipment upon the Leased Properties, as a result of may be necessary to resolve such failure claim.
(except that c) With respect to any action, proceeding or claim as to which (i) the Indemnifying Party does not have the right to assume the defense or (ii) the Indemnifying Party shall not be liable for any expenses incurred during have exercised its right to assume the period in which the Indemnitee failed to give such notice). If a Third Party Claim is made against an Indemniteedefense, the Indemnified Party shall assume and control the defense of and contest such action, proceeding or claim with counsel chosen by it and approved by the Indemnifying Party, which approval shall not be unreasonably withheld. The Indemnifying Party shall be entitled to participate in the defense thereof andof such action, in the case of an Indemnifying Party's obligation to indemnify the Indemnitee pursuant to Section 3.01(a), Section 3.01(b), Section 3.02 proceeding or Section 3.03, if the Indemnifying Party so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimclaim, the Indemnifying Party shall not cost of such participation to be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for obligated to pay the reasonable attorneys' fees and expenses of counsel employed by the Indemnitee for any period during which Indemnified Party. The Indemnified Party may not settle such action, proceeding or claim without the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party so elects to assume the defense prior written consent of any Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that withheld.
(d) Both the Indemnitee Indemnifying Party and the Indemnified Party shall have cooperate fully with one another in connection with the right to settledefense, compromise or discharge such Third Party Claim without the consent settlement of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend which by its terms (i) obligates the Indemnifying Party to pay the full amount of its indemnification obligation in connection with such Third Party Claim and (ii) releases the Indemnitee completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnitee; and provided further that the Indemnitee may refuse to agree to any such proposed settlementaction, compromise proceeding or discharge if claim, including, without limitation, by making available to the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such proposed settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (other all pertinent information and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with witnesses within its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. The provisions contained in Section 3.01(d) shall control in the situations described particularly in that sectioncontrol.
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